[Senate Hearing 107-673]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 107-673
 
 CONFIRMATION HEARING ON THE NOMINATION OF THOMAS L. SANSONETTI TO BE 
                       ASSISTANT ATTORNEY GENERAL
=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

                            NOVEMBER 6, 2001

                               __________

                          Serial No. J-107-47

                               __________

         Printed for the use of the Committee on the Judiciary


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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director
                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cantwell, Hon. Maria, a U.S. Senator from the State of Washington     1
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    61
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     8
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........     9
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.    64
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     9

                               PRESENTERS

Enzi, Hon. Mike, a U.S. Senator from the State of Wyoming 
  presenting Thomas L. Sansonetti to be Assistant Attorney 
  General for the Environment and Natural Resources Division.....     7
Thomas, Hon. Craig, a U.S. Senator from the State of Wyoming 
  presenting Thomas L. Sansonetti to be Assistant Attorney 
  General for the Environment and Natural Resources Division.....     4

                        STATEMENT OF THE NOMINEE

Sansonetti, Thomas L., of Wyoming, Nominee to be Assistant 
  Attorney General for the Environment and Natural Resources 
  Division.......................................................    10
    Questionnaire................................................    14

                         QUESTIONS AND ANSWERS

Responses of the Nominee to questions submitted by Senator 
  Cantwell.......................................................    81
Responses of the Nominee to questions submitted by Senator Durbin    91
Responses of the Nominee to questions submitted by Senator 
  Kennedy........................................................    93
Responses of the Nominee to questions submitted by Senator Leahy.    95

                       SUBMISSION FOR THE RECORD

Cubin, Hon. Barbara, a Representative in Congress from the State 
  of Wyoming, statement in support of the nomination of Thomas L. 
  Sansonetti to be Assistant Attorney General for the Environment 
  and Natural Resources..........................................    97

 
 CONFIRMATION HEARING ON THE NOMINATION OF THOMAS L. SANSONETTI TO BE 
                       ASSISTANT ATTORNEY GENERAL

                              ----------                              


                       TUESDAY, NOVEMBER 6, 2001

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 2:00 p.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Maria 
Cantwell, presiding.
    Present: Senators Cantwell, Leahy, Feingold, Hatch, Kyl, 
and Sessions.

 OPENING STATEMENT OF HON. MARIA CANTWELL, A U.S. SENATOR FROM 
                    THE STATE OF WASHINGTON

    Senator Cantwell. The hearing of the Senate Committee on 
the Judiciary will come to order. The hearing is for the 
purpose of taking up the nomination of Thomas L. Sansonetti to 
be Assistant Attorney General for the Environment and Natural 
Resources Section of the Department of Justice.
    Mr. Sansonetti, you are nominated to an extremely important 
position and I am pleased that we are moving forward today on 
this process in this hearing.
    Mr. Sansonetti has previously served as associate solicitor 
of the Interior and as solicitor of the Department of Interior. 
I will have a number of questions about your decision-making 
process in the past and the questions that you are likely to 
face in the job as Assistant Attorney General but I want to say 
that I have heard testimony from my colleagues on both sides of 
the aisle that compliment your legal skills and your 
willingness to work cooperatively toward responsible solutions, 
so I look forward to hearing your answers on many of our 
questions today.
    The position of Assistant Attorney General for the 
Environment and Natural Resources Section of the Department of 
Justice is a job that comes with enormous responsibilities. The 
person holding this position has the duty both to uphold our 
environmental protection regulations in the face of challenges, 
and simultaneously to pursue responsible enforcement of our 
major environmental statutes that protect the air we breathe 
and the water we drink. The person who fills this position 
needs to have the confidence not only of the president and the 
attorney general but also of the American people. They need to 
know that the laws will be enforced in a way that protects our 
public health, preserves our natural resources, and does that 
for future generations.
    The person who holds this job is our nation's top 
environmental law enforcer, responsible not only for 
representing government agencies but also responsible for 
representing the American people as their chief advocate.
    The public is strongly committed to protecting the 
environment. According to a March 2001 survey, 75 percent of 
Americans favor stronger enforcement of our environmental 
regulations and 75 percent believe that our current 
environmental laws should be maintained.
    What the American people seek but are not finding is the 
same level of commitment from the administration to enforce our 
existing environmental protection laws. That may be why 57 
percent of the American public believe that under the 
administration the quality of our environment is getting worse. 
The public has a right to be skeptical but I am hoping, Mr. 
Sansonetti, that you will change that in your position.
    In the past 10 months the administration has repealed rules 
to keep arsenic out of drinking water, repealed requirements 
for energy-efficient air conditioners, reneged on our 
commitment to reduce greenhouse gas emissions, and contemplated 
repealing regulations protecting school lunches from Salmonella 
contamination. Just last week the administration announced that 
they would change the rules governing hardrock mining for gold 
and silver.
    What we seek, Mr. Sansonetti, from you today is a strong 
commitment that as Assistant Attorney General the process will 
begin of restoring the public's confidence in the 
administration's commitment to environmental protection by 
upholding the laws and advancing strong pro-enforcement 
actions. In this job you will be responsible for prosecuting 
violations of the Clean Air and Clean Water Acts, the two 
federal laws most directly aimed at controlling pollution. You 
will represent the EPA in forcing the clean-up of contaminated 
Superfund sites and you will make the decisions that determine 
the continued existence of hundreds of endangered species.
    When the department is sued to weaken environmental 
regulations you will be in charge of the litigation. These 
suits have already included efforts to invalidate the roadless 
area rule that protects 58 million acres of forests, and to 
overturn the air conditioning efficiency standards that would 
spare us the need to build 39 mid-size electricity-generating 
plants.
    Finally, as Assistant Attorney General for the 
Environmental Section, you will have the responsibility for 
sending a message that this administration cares about the 
environment. You will have the opportunity to do this by 
advancing strong positions in negotiations and settlements and 
by refusing to let back-door settlements be used as a 
convenient under-the-radar means of weakening regulations.
    I know that there are many here who want to talk about 
their support for you and we will get to that but I just want 
to make a final point, that in my view, shared by a significant 
majority of Americans, strong environmental protection should 
be a priority for this country, even in the face of new demands 
from what is likely to be a long and costly war against 
terrorism. Vigorous enforcement and a strong posture in 
negotiations lead directly to creative solutions to the public 
health and environmental challenges we face.
    Getting business and government to work together toward 
these solutions is essential to having livable communities. I 
believe that is one of the key reasons that business has been 
willing to make investments in creative technology solutions to 
protect our environment and public health over the past 10 
years, because of the vigorous enforcement roles that the 
Department of Justice has taken.
    So Mr. Sansonetti, we look forward to hearing your 
testimony today and your thoughts on the questions that my 
colleagues and I will pose to you. But first we will hear from 
two of, I believe, your ardent supporters, Senator Thomas and 
Senator Enzi of Wyoming, and I believe that Congresswoman Cubin 
may also be joining us here today.
    It is definitely the practice of the Committee to ask the 
nominees who are supported by their members to make statements 
and the two of your senators are here and Senator Thomas, I 
believe that you may want to start with your statement.
    [The opening statement of Senator Cantwell follows:]

 Opening Statement of Maria Cantwell, a U.S. Senator from the State of 
                               Washington

    Mr. Sansonetti, I'd like to welcome you here today. When we last 
saw each other in my office on September 6th I think we were planning 
to hold your hearing within the next ten days. Obviously a lot has 
changed since then--and we have had some delays in moving forward with 
your nomination due to the events that have consumed all of us.
    Mr. Sansonetti, you are nominated to an extremely important 
position and I am pleased that we are moving forward with your hearing 
today, and I am also pleased to be able to chair this hearing.
    Mr. Sansonetti has previously served as Associate Solicitor of the 
Interior and as Solicitor of the Department of Interior. I will have a 
number of questions about his decision making in these positions that 
has raised some concerns, in addition to questions about new issues the 
nominee is likely to confront as the Assistant Attorney General.
    I have heard testimonials from my colleagues on both sides of the 
aisle as to Mr. Sansonetti's legal skills, and his willingness to work 
cooperatively toward reasonable solutions, and I look forward to 
hearing his answers to our questions here today.
    The position of Assistant Attorney General for the Environment and 
Natural Resources Section of the Department of Justice is a job that 
comes with enormous responsibilities.
    The person holding this position has the duty both to uphold our 
environmental protection regulations in the face of challenges, and 
simultaneously to pursue responsible enforcement of our major 
environmental statutes that protect the air we breath and the water we 
drink.
    The person who fills this position needs to have the confidence, 
not only of the President and the Attorney General, but also of the 
American people. They need to know that the laws will be enforced in a 
way that protects our public health, preserves our natural resources 
for future generations, ensures a diverse biosystem with the continued 
existence of threatened species and plants, and protects the quality of 
our air and water.
    The person who holds this job is the nation's top environmental law 
enforcer, responsible not only for representing government agencies, 
but also for representing the American people as the chief advocate for 
our environment.
    The public is strongly committed to protecting the environment: 
according to a March 2001 Fox News poll, seventy- seven percent favor 
stronger enforcement of environmental regulations and seventy-five 
percent believe that our current environmental laws should be 
maintained.
    What the American people seek--but are not finding--is the same 
level of commitment from the Administration to enforce our existing 
environmental protection laws. That may be why fifty-seven percent of 
the American public believes that under this Administration the quality 
of our environment is getting worse.
    Americans are right to be skeptical of this Administration's 
commitment to environmental protection. In the past ten months, the 
Administration has repealed rules to keep arsenic out of drinking 
water, repealed requirements for energy efficient air conditioners, 
reneged on our commitment to reduce green house gas emissions, and 
contemplated repealing regulations protecting school lunches from 
Salmonella contamination.
    Just last week the Administration announced that she would change 
the rules governing hardrock mining for gold and silver--so that the 
Bureau of Land Management would no longer prohibit mining where it 
would cause ``substantial irreparable'' harm to the environment or 
public health.
    What we seek from Mr. Sansonetti today is a strong commitment that 
as Assistant Attorney General he will begin the process of restoring 
the public's confidence in the Administration's commitment to 
environmental protection by upholding the law and advancing strong pro-
enforcement efforts.
    In this job he will be responsible for prosecuting violations of 
the Clean Air Act and the Clean Water Act, the two federal laws most 
directly aimed at controlling pollution. He will represent the EPA in 
forcing the clean-up of contaminated Superfund sites, and he will make 
decisions that determine the continued existence of hundreds of 
endangered species.
    When the Department is sued to weaken environmental regulations, he 
will be in charge of the litigation. These suits already include 
efforts to invalidate the Roadless Rule that protects 58 million acres 
of forests, and to overturn the air conditioning efficiency standard 
that would spare us the need to build thirty-nine mid-size electricity 
generating plants.
    Finally, as Assistant Attorney General for the Environment Section, 
he will have the responsibility for sending a message that this 
Administration cares about the environment. He will have the 
opportunity to do this by advancing strong positions in negotiations 
and settlements, and by refusing to let backdoor settlements be used as 
a convenient and ``under the radar'' means of weakening valid 
regulations.
    These questions are directed at ensuring that, as Mr. Sansonetti 
upholds the law and makes decisions that shape environmental 
enforcement--in deciding what cases to prosecute or appeal and what 
cases to settle--he takes into account the importance of strong 
environmental protection laws in a healthy economy.
    In my view--shared by a significant majority of the American 
people--strong environmental protections should be a priority for this 
country and for this Administration, even in the face of new demands 
from what is likely to be a long and costly war on terrorism. Vigorous 
enforcement and a strong posture in negotiations lead directly to 
creative solutions to the public health and environmental challenges 
that we face.
    Getting business and government to work together towards these 
solutions is essential to having livable communities with strong and 
diverse economies into the next century.
    I believe that one of the key reasons that business has been 
willing to make investments in creative technologies to protect and 
preserve our environment and public health over the past ten years is 
the vigorous enforcement role taken by Department of Justice and 
specifically the Environment and Natural Resources section.
    A continued commitment to strong enforcement is necessary to keep 
businesses moving forward in the development of creative solutions--
rather than allowing a return to a focus on short-term benefits--and 
long-term losses--of a cut, drill, and mine philosophy.
    Again, I would like to thank Mr. Sansonetti for his patience in the 
scheduling of this hearing. The position of Assistant Attorney General 
for the Environment and Natural Resources Section of the Department of 
Justice is a very important position. I look forward to hearing Mr. 
Sansonetti's views on the issues and challenges he will face if he is 
confirmed.
    Thank you.

   PRESENTATION OF THE NOMINEE BY HON. CRAIG THOMAS, A U.S. 
               SENATOR FROM THE STATE OF WYOMING

    Senator Thomas. Thank you very much.
    I might say in the beginning that Congresswoman Cubin's 
husband has not been well and I think she has submitted a 
letter. She is fully in support of Tom Sansonetti.
    Senator Cantwell. Thank you.
    Senator Thomas. Thank you so much, members of the 
Committee. It is with great pleasure and pride that I join in 
introducing to the Committee Tom Sansonetti to be Assistant 
Attorney General for environmental and natural resources. As 
you know, his nomination is one that I have personally followed 
very closely and encouraged the Committee and the Senate to 
undertake as soon as possible, so thank you again for agreeing 
to do that.
    I should share, as he will later, in introducing Kristi 
Sansonetti, a wonderful wife and partner, and she will provide 
a great deal of support for him.
    I resist detailing every detail because I have known Tom 
for a very long time and we have worked together in several 
ways. Certainly, however, the Committee is familiar with his 
law background. Suffice to say he is a Wyoming lawyer, which, 
of course, is a good thing, a fine Wyoming lawyer with 
extraordinary experience in public service and private 
advocacy.
    Just a few things from his positions in the past. After 
establishing his own firm and practicing law in Wyoming, Tom 
was named associate solicitor for energy and resources in the 
Department of Interior. As associate, Tom supervised the staff 
of attorneys that successfully handled all matters within the 
department dealing with public lands and water, mineral 
royalties, offshore and onshore oil and gas development.
    In 1989 Tom returned the Wyoming. It was then, following 
Dick Cheney's resignation from the House to become secretary of 
defense, that Tom and I found ourselves engaged in a special 
election for that at-large seat. After the primary Tom agreed 
to be my campaign manager and later joined me in Washington as 
chief of staff.
    Certainly he was an effective and magnanimous partner in 
that deal. He was invaluable in assisting me with the staff in 
all the things that we do there. His primary aid was in matters 
associated with the House Interior and Insular Affairs 
Committee, of which I was a member.
    Unfortunately for me, President George Bush nominated Tom 
to be solicitor at the U.S. Department of Interior and he was 
confirmed by the Senate in 1990. It was there that Tom again 
distinguished himself as a productive advocate on behalf of the 
United States and became intimately involved in negotiating a 
host of high-profile cases.
    And I should say, Madam Chairman, in some what response to 
your comments, I think Wyoming is particularly interested in 
environmental things. We are particularly interested in the 
multiple use of our lands and the keeping of our resources in 
good shape and Tom, of course, has been dedicated to that. He 
has a reputation in government of weighing carefully the 
concerns of the environment, natural resources and the law.
    As you know, Tom is a long-time confidante and ally, so I 
certainly am proud to call him my friend. The president has 
nominated a talented and experienced lawyer who has been 
involved in all these issues that he will now be involved in 
and certainly I ask the Committee to give his nomination its 
full and fair consideration. It would be a mistake and a 
disappointment if his nomination were to be held up by a 
senator for political reasons unrelated to the important job at 
hand. So I look forward to his appointment swiftly progressing 
hopefully through the Committee and through the U.S. Senate. 
Thank you, Madam Chairman.
    [The prepared statement of Senator Thomas follows:]

 Presentation on the Nominee by the Hon. Craig Thomas, a U.S. Senator 
                       from the State of Wyoming

    Thank you Mr. Chairman and members of the Committee.
    It is with great pleasure and pride that I introduce to the Senate 
Judiciary Committee today Mr. Tom Sansonetti to be Assistant Attorney 
General of United States for the Environment and Natural Resources.
    As you know, his nomination is one I have personally followed very 
closely and have encouraged this committee and the Senate to take up as 
soon as possible considering the importance of the position and Mr. 
Sansonetti's abilities to do the job.
    Thank you again Chairman Leahy for agreeing to hold this hearing 
today.
    I would also like to share in introducing Kristi Sansonetti, Tom's 
wonderful wife and partner. Tom will surely have more to say about her 
and the great support she provides, but I want to join in welcoming her 
here today.
    I will resist detailing each and every one of Tom's many 
professional accomplishments, solid opinions and legal advice. The 
Committee is by now familiar with his background in law and public 
policy. But suffice it to say he is a Wyoming lawyer which is of course 
a good thing--a fine Wyoming lawyer, with extraordinary experience as a 
public servant and private advocate.
    Please allow me to highlight just a few of the positions Tom has 
held that I believe make him uniquely qualified for this important 
post.
    After establishing his own firm and practicing law in Wyoming, Tom 
Sansonetti was named Associate Solicitor for Energy and Resources, in 
the Department of the Interior. As Associate Solicitor, Tom supervised 
a staff of attorneys that successfully handled all matters within the 
Department concerning public lands, water, power, mineral royalties, 
onshore and offshore oil and gas development.
    In 1989 Tom returned home to Wyoming. It was then, following
    Dick Cheney's resignation from the House of Representatives to 
become Secretary of Defense, that Tom and I both found ourselves 
engaged in a special election for Wyoming's at-large seat.
    It was after the primary that Tom agreed to be my campaign manager 
and later join me in Washington as my Chief of Staff.
    Tom was as magnanimous as he was effective.
    He was invaluable in helping me assemble a staff and office in 
Washington after a bruising 90 day campaign that quickly resulted in a 
professional Congressional organization that I'm proud to say 
accomplished a great deal. In addition, Tom was my primary aide dealing 
with matters associated with the House Interior and Insular Affairs 
Committee. I watched first hand, Tom's skill in navigating issues of 
public lands, Indian Affairs, and natural resource protection.
    Unfortunately for me, President George H. Bush nominated Tom to be 
Solicitor at the U.S. Department of Interior, and was confirmed by the 
U.S. Senate in May 1990. It was there that Tom again distinguished 
himself as a productive advocate on behalf of the United States and 
became intimately involved in negotiating a host of high profile and 
important cases. I'm certain Secretary Lujan, if he were at this 
hearing today, would echo my endorsement of Tom's abilities.
    Tom has a reputation in government of weighing carefully the 
concerns of the environment, our natural resources and the law. It is a 
studied, common-sense approach that lends itself perfectly to the job 
he is being asked to assume.
    As you know Mr. Chairman, Tom is a long-time confidant and ally of 
mine--which in this case might help him or hurt him. Either way, I'm 
proud to call him my friend.
    The President has nominated a talented and experienced lawyer, who 
has been through the trenches on the issues that are critical to the 
Environment and Natural Resources Division. His background will serve 
the Office of Attorney General, this Administration, and the American 
people well.
    I respectfully ask that this committee give Mr. Sansonetti's 
nomination it's full and fair consideration. It would be a mistake and 
disappointment if his nomination were to be held up by a Senator for 
political reasons unrelated to the important job at hand. I look 
forward to his appointment swiftly progressing through this committee 
and the full U.S. Senate.
    Thank you Mr. Chairman and members of the committee.

    Senator Cantwell. Senator Thomas, I know senators' 
schedules are busy so we appreciate you being here and giving 
testimony.
    Senator Enzi?

 PRESENTATION OF THE NOMINEE BY HON. MIKE ENZI, A U.S. SENATOR 
                   FROM THE STATE OF WYOMING

    Senator Enzi. Thank you, Madam Chairman, and thank you for 
holding this hearing today so that I might have the opportunity 
to introduce Mr. Sansonetti to the Committee.
    I have known him for 25 years. He moved to Gillette, 
Wyoming after he graduated from Washington and Lee University 
School of Law. He came to town in a 1966 Volkswagen and opened 
a one-man practice on Gillette's main street. I do remember 
that as part of his operation he actually did get to handle 
some criminal cases, including a couple of real gunslingers.
    He eventually became intimately acquainted with Gillette's 
booming energy industry. He worked hard. He became a part of 
the community. Because of his dedication, when I was mayor I 
appointed him to the city's Board of Adjustment. He found out 
that that was an extremely difficult task since when you are on 
the Board of Adjustment there are no right answers, only wrong 
ones, and you are resolving them with people who will not 
appreciate either answer. He handled it admirably.
    While he was in Gillette he also served as president of the 
Campbell County Bar Association. He was chairman of the 
Campbell County United Way. He was vice chairman of the 
Campbell County Parks and Recreation Board and made a huge 
increase in the number of parks that we had throughout the 
county at that time. He was vice chairman of the Campbell 
County Chamber of Commerce.
    He developed his understanding of the environment, energy 
and natural resources by actually working in the trenches. 
During the time that he was in Gillette, the town almost 
tripled in size, which was due to the energy growth that we 
had. Gillette is in the heart of the Powder River Basin, an 
area that produces close to a third of the nation's coal. It is 
also expected to lead the nation in the production of coalbed 
methane, which is a form of natural gas; it may be one of the 
single largest deposits of natural gas in the United States.
    At the same time, the area has been home to growing 
populations of deer, antelope, sage grouse, turkeys and elk, as 
well as a number of ranchers and farms. Through his associate 
with Gillette, he learned the true value of natural resources 
and I feel confident in saying that Tom would not do anything 
to compromise the continued sustainability of our nation's 
environment.
    The experience there served him well in his later career as 
he represented the United States interests, as has been 
mentioned, as associate solicitor for energy and resources and 
then as Interior solicitor in 1990. As solicitor, Tom 
represented the United States in the Exxon oil spill litigation 
and signed the $1.1 billion settlement on behalf of the 
Department of Interior.
    He also served as counsel to the Endangered Species 
Committee, which was a Cabinet-level group convened by former 
Secretary of Interior Manual Lujan to resolve issues 
surrounding the Northern spotted owl, a big issue in the 
Pacific Northwest, as the chairman knows.
    Over the years I have watched Tom's legal progress and I am 
not surprised by his success. He is a thoughtful, creative 
person who enjoys a challenge and whom even his opponents like. 
He sees every side of an issue. He can negotiate the most 
contentious situation into a happy resolution. He is fair. He 
gets the job done and he gets it done well.
    Part of my experience with Tom has been some annual dinners 
that he and a Wyoming district judge, who will be coming before 
this Committee to be a federal circuit judge, had on a regular 
basis. When we were having those dinners one would figure out 
the meal and one would provide the refreshment and the third 
would provide the issues and the discussions would go late into 
the night, solving the nation's and the state's problems. So I 
have had an opportunity to witness his thought process and his 
decision process and his values and I would highly recommend 
him to this Committee. He is a person who will do an 
outstanding job.
    I am pleased that he is joined today with his wife Kristi, 
who is one of my new staff members. She is an outstanding 
attorney in her own right. I highly recommend to you Tom 
Sansonetti. Thank you, Madam Chairman.
    Senator Cantwell. Thank you, Senator Enzi, for your 
comments and your thoughts on Mr. Sansonetti's long record and 
I appreciate your time and focus today at the hearing.
    Now I will ask my colleagues if they have any opening 
statements that they would like to make. Senator Hatch?

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Thank you, Madam Chairman.
    It is a pleasure to be here this afternoon with someone as 
well qualified for this position as Tom Sansonetti. I 
congratulate you on being selected as President Bush's 
Assistant Attorney General for the Environmental and Natural 
Resources Division.
    Now having reviewed your distinguished record, I have no 
doubt that you will provide great service to the citizens of 
this country upon confirmation.
    The division you have been nominated to lead is essentially 
the nation's environmental law firm. The ENRD, as it is known, 
is responsible for litigation concerning the protection, use, 
and development of the nation's natural resources and public 
lands. It also handles lawsuits involving wildlife protection, 
Indian rights and claims, the clean-up of the nation's 
hazardous waste sites, and the acquisition of federal property 
for federal use. It also defends environmental challenges to 
governmental programs and activities.
    The person who oversees this important division and its 
approximately 700 employees must be someone with experience and 
fortunately Tom Sansonetti has a proven track record. As the 
solicitor of the Department of Interior from 1990 to 1993, he 
acted as the primary legal advisor to then Secretary Manual 
Lujan, Jr. You managed, Tom, a $32 million administrative 
budget and you oversaw the 900-case legal docket.
    You served as one of the six federal negotiators for the 
Exxon Valdez oil spill settlement and you were appointed 
counsel to the Endangered Species Committee for the spotted owl 
hearings in Oregon. Previous to that, you served for two years 
as the Interior Department's associate solicitor for energy and 
resources.
    Equally important, Mr. Sansonetti has also gained 
familiarity representing private sector clients as a lawyer 
specializing in environmental and natural resources law, 
including cases regarding endangered species, water law, mining 
regulations, and Superfund sites. In short, I believe you to be 
a well rounded and highly competent lawyer with a reputation 
for fairness. Tom Sansonetti is exactly the person we need to 
lead the Environment and Natural Resources Division.
    So again, it is a great pleasure to welcome you to the 
Committee. I look forward to this hearing, working with Senator 
Cantwell, other members of the Committee, Chairman Leahy in 
particular, and others to make sure the Committee and the full 
Senate holds timely votes on your nomination.
    Senator Cantwell. Senator Kyl?

  STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF

    Senator Kyl. Madam Chairman, I just ask unanimous consent 
to submit my statement for the record and would just note that 
I think it is a little incongruous to be so critical of the 
Bush administration's enforcement of our environmental laws, 
note that Mr. Sansonetti will be the chief enforcer of those 
laws, but not get around to holding his confirmation hearing 
until November. I hope that we can quickly bring him to the 
Senate floor and get him confirmed so that he can join the 
administration and begin fulfilling those significant 
responsibilities.
    Senator Cantwell. Senator Sessions?

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Madam Chairman.
    I had a brief opportunity to chat with Mr. Sansonetti and 
was most impressed but I have also enjoyed discussing this 
matter with the senators who testified here who know him 
intimately and have such a high opinion of him and their 
opinions mean a lot to me.
    I would just say this. He has an outstanding background. 
University of Virginia undergraduate school, his MBA at the 
fine University of Virginia masters of business administration 
program and his law degree at Washington and Lee.
    As the solicitor in the Department of Interior he got a 
first-hand look at the issues he will be dealing with in the 
Department of Justice. In many ways I would describe the 
Interior Department to be the in-house law firm for the 
government with the Department of Justice being the litigating 
branch ultimately, handling litigation that comes forth. 
Hopefully they will be able to advise or adhere to and support 
the Department of Interior regulations and ideas about how 
legal matters should be handled but they ultimately have their 
obligation and commitment to the Constitution and to the law of 
the land if the Department of Interior is in error.
    In many ways the Environment and Natural Resources Division 
impacts our nation. Mr. Sansonetti, I am glad that you have had 
in-house, in-government experience and I am glad you have 
represented private businesses. Businesses are not all evil and 
doing wrong. Most businesses want to do what the law says but 
so many of our environmental regulations are vague or hard to 
apply fairly and oftentimes lawsuits have tremendous import 
over the most arcane rules and regulations in the governmental 
statutes that we have passed and regulations that have been 
passed.
    So I think it is healthy to have someone who has had a 
history of enforcing the laws through the Department of 
Interior and, at the same time, had a history of representing 
individuals.
    And I do believe that there is a constitutional right to 
property in America and before property rights can be taken the 
government should have a legal basis to do so and I think and 
hope that you would have some sensitivity to that, Mr. 
Sansonetti. But fundamentally, the power of the Assistant 
Attorney General of environment and natural resources is not as 
great as some would say. Basically you are bound by the law and 
regulations that we pass here and the court rulings that have 
interpreted those regulations and statutes that we have passed 
and the Constitution, and I think your experience will put you 
in a good position to be a very effective leader.
    Thank you, Madam Chairman.
    Senator Cantwell. Thank you, Senator Sessions.
    Mr. Sansonetti, I think what we would like to do, since we 
are expecting a vote at 2:30, is to call you up and administer 
the oath and have your testimony, maybe make introductions of 
family members that are here, and then it may be that we 
adjourn for a short time for members to come vote and then 
start the question and answer period after that.
    So if you will come forward and stand and raise your right 
hand, do you swear that the testimony you are about to give 
before the Committee will be the truth, the whole truth and 
nothing but the truth, so help you God?
    Mr. Sansonetti. I do.
    Senator Cantwell. So you are free to make any kind of 
introductions and opening statement.

 STATEMENT OF THOMAS L. SANSONETTI, OF WYOMING, NOMINEE TO BE 
  ASSISTANT ATTORNEY GENERAL FOR THE ENVIRONMENT AND NATURAL 
                       RESOURCES DIVISION

    Mr. Sansonetti. Thank you, Madam Chairwoman and members of 
this Committee.
    First of all, Madam Chairwoman, I would like to introduce 
my wife Kristi. She is a Wyoming native, a Wyoming attorney who 
until recently worked as an attorney with Judge Brorby on the 
Tenth Circuit Court of Appeals.
    I would also like to thank the members of the Wyoming 
congressional delegation for coming to my hearing today and I 
greatly appreciate their kind words this afternoon. I have had 
the good fortune to know both senators and work with them for 
over 20 years and I am honored that they spoke on my behalf.
    I would also like to thank this Committee for scheduling 
this hearing, particularly when Congress is so engaged in 
responding to the aftermath of the terrorist attacks on 
September 11 and I appreciate the fact that you held this 
hearing today.
    As far as my statement is concerned, Madam Chairwoman, 90 
years ago both sets of my grandparents immigrated to America--
one from Italy, the other from Slovenia. As they landed on 
these shores they hoped that their lives and the lives of their 
children would be better than the life that they had 
experienced in their countries. Both my parents were born in 
America into non-English-speaking families with little money 
but like me, they had the great American opportunity of 
education. And if they were alive today my grandparents would 
feel, as my parents and I do, that it is a special family 
achievement to appear before you today.
    And I do feel extremely privileged to be President Bush's 
nominee for the position of Assistant Attorney General for the 
Environment and Natural Resources Division of the Department of 
Justice. I am excited about the prospect of serving our nation 
and working with Attorney General John Ashcroft and Congress on 
the numerous natural resource and environmental challenges 
facing our country.
    I strongly believe that it is our responsibility to 
conserve for future generations the opportunity to experience a 
cleaner, greener United States than we enjoy now. At the same 
time we must provide future generations with the same kind of 
opportunity for the quality of life and economic achievement 
that we enjoy today. The 21st century will be a better place 
for everyone to live if we make wise decisions during these 
next few years concerning clean air, clean water and the 
multiple use for public lands. I am excited at the prospect of 
playing a role in that decision-making process. And in carrying 
out the duties of the Assistant Attorney General, if confirmed, 
I look forward to working closely with members of this 
Committee and other members of Congress to deal successfully 
with issues involving America's natural resources.
    So if recommended by this Committee and confirmed by the 
Senate, I will have the opportunity to serve in what I believe 
to be one of the premier legal posts in the federal government. 
I am well aware that the legal positions taken by the ENRD's 
attorneys directly affect the daily lives of all Americans.
    Now my personal observations of the federal government's 
impact on its citizens' lifestyle and livelihood are based in 
large part on my first-hand experience. As the senators noted, 
I have resided in Gillette and Cheyenne, Wyoming for 25 years 
and I did first move to Wyoming after earning my degrees from 
U.Va. and Washington and Lee in 1976. I began practicing as an 
attorney, first as a sole practitioner and then in partnerships 
with other Wyoming law firms, with a total of over 300 court 
cases to my credit.
    Now the variety of clientele I represented offered me a 
real-life perspective on the environment and natural resources 
issues facing our nation today. In particular, as a local 
attorney I experienced the benefits and the impacts of an oil, 
natural gas and coal boom on the citizenry of the nation's 
smallest populace. Likewise, I observed the beneficial effects 
of federal environmental regulations which required reclamation 
after extraction of coal, gas, oil and other minerals. And I 
also witnessed the devastating economic effects of the 
inevitable bust that followed.
    Now one of the assets that I believe I bring to the job of 
Assistant Attorney General, if confirmed, would be my previous 
government experience. I was the associate solicitor for energy 
and resources at the close of the Reagan administration and the 
solicitor of the Department of the Interior for three years 
during the early 1990s in the George Bush administration. In 
both capacities I had extensive interaction with many of the 
nine sections in the Environment and Natural Resources 
Division.
    Serving in these previous administrations allowed me to 
develop an appreciation for the many positions in natural 
resources litigation and such litigation's potential impacts on 
our citizenry. I have been exposed to the workings of Congress, 
the White House, the Office of Management and Budget, and the 
Departments of Agriculture, Energy, Interior and the 
Environment Protection Agency. I understand the need to develop 
strong working relationships with the other legal and policy 
decision-makers in these institutions. And having served as 
solicitor, I also understand the West's thirst for scarce water 
resources that pits the federal government, individual states, 
sometimes Indian tribes against one another. I have visited 
reservations in eight states and know of the poverty and 
unemployment that can exist there. I believe that these life 
experiences will guide me as I work with attorneys under my 
supervision.
    I bring to the job of Assistant Attorney General a solid 
grounding in the legislative process, not only through my prior 
service in the executive branch but also from the vantage point 
of having worked in a congressional office. As the 
administrative assistant and legislative director for then-
Congressman Craig Thomas during the 101st Congress, I followed 
all of the proposed legislation before the House Resources 
Committee on which he served, plus monitored the actions of his 
Subcommittees on National Parks, Public Lands, and Water.
    Thus, I believe I have a clear understanding of the 
interrelationship between the executive, legislative and 
judicial branches of our government, having worked in the 
executive and legislative branches since 1987 and having 
practiced before the judicial branch for a quarter century 
during my legal career.
    I have met with several members of this Committee and am 
aware of many of your present concerns about the environment 
and natural resources issues. I understand the concern over the 
need to maintain strong field offices outside of Washington, 
D.C. while coordinating their activities with the policies 
established inside the Justice Department. I recognize that 
these field offices directly deal with many of the day-to-day 
concerns of your constituents. Accordingly, if confirmed, I 
plan to travel to those field offices regularly to ensure the 
best service possible is provided by the Environment and 
Natural Resources Division.
    Lastly, I like to think of myself as a problem-solver and a 
mediator. My years in private practice have convinced me that 
clients are best served by vigorous attempts to resolve 
disputes short of trial. To that end my door would always be 
open to you and your constituents in order to address their 
concerns in a fair manner. I need to hear their legal arguments 
and they need to hear mine.
    I will be happy to answer any questions that you may have 
today and I thank you, Madam Chairwoman, for this opportunity.
    [The biographical information of Mr. Sansonetti follows.]
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    Senator Cantwell. Thank you for your opening statement and 
again thank you for being here and for your wife being here. I 
am glad to see that Senator Enzi has used the judgment of both 
sides of the Sansonetti family in his political dealings.
    I think that since we are expecting a vote, the best way to 
do this is to recess until 2:45, hoping that the vote will 
occur at 2:30, and then we will be back to start questions. It 
is the chair's intention to do rounds of 10-minute questions at 
that point in time, if that is helpful for members. Then we 
will rotate that and depending on how many questions members 
have, at least have two rounds and potentially three if there 
are people. Obviously we will submit questions and set a time 
frame for responses in writing for those but it is the chair's 
intention that I will suggest to the chairman of the Committee 
that we do move quickly after this process.
    With that, we will recess until 2:45.
    [Recess.]
    Senator Cantwell. The Senate Judiciary Committee will be in 
order. We are here this afternoon on the confirmation hearing 
of Mr. Sansonetti and thank you again for your opening 
statement.
    As I said earlier, we will start with our round of 
questions, to be basically 10-minute rounds among members. 
Since the chair is the only member here, I might get in a few 
rounds myself before others show up but nonetheless, I will 
defer to them as they appear. And as stated earlier, we will 
keep the record open probably for a week after this for 
questions to be submitted in writing to you and for your 
response on that.
    So let me begin with some general questions if I could, 
given your statement and comments, and then maybe get into some 
more specific questions about your background. And I know that 
Senator Enzi mentioned your involvement with the Endangered 
Species Act and the various dealings there, which are important 
to the Northwest, so I am sure I will have a few questions on 
that.
    But basically I would like to start with this larger 
dilemma that I see facing us and the country right now, and 
that is that there is a public perception that the 
administration may have acted in a variety of areas--arsenic in 
clean drinking water--in ways that may be backing off of our 
environmental commitment. I wonder if you agree that that has 
been the case and what generally do you think that we need to 
do to, in this position, convince the public that we are going 
to have an aggressive enforcement of our environmental laws?
    Mr. Sansonetti. Thank you for the question, Senator. I 
think it is a very good one that individuals all across America 
are, of course, very concerned about their environment and to 
make sure the environment is protected. I happen to share in 
that belief, as I noted in my opening statement. I think it is 
our responsibility to conserve for future generations the 
opportunity to experience, as I said, a cleaner, greener United 
States than we have now and it will be this administration's 
job to make that happen.
    Now obviously I have been on the outside practicing law in 
Cheyenne, Wyoming this year but I have been observing the 
administration's activities and frankly look forward to an 
opportunity, if confirmed, to deal with the individuals that 
are helping to make those decisions at the Department of 
Interior, Agriculture, Energy and EPA. The key job is to 
enforce the law as it is written and to the degree that I am 
fortunate enough to be confirmed by this Committee, I promise 
you that I will enforce that law.
    Senator Cantwell. So do you agree that there is a 
perception there that the administration may not have been 
enforcing environmental laws?
    Mr. Sansonetti. There have been articles that have appeared 
that have hit on several of the decisions that have been made 
thus far by the administration and some probably do have a 
perception that the administration is perhaps not enforcing the 
law as well as they would like. But I think that to the degree 
that you have got an active Assistant Attorney General that is 
bound and determined to make sure that the law is enforced, if 
there is that negative perception out there I think that it can 
only improve for the better.
    Senator Cantwell. Let me turn to some specific questions 
when you served previously as solicitor for the Department of 
Interior, which I think was from 1989 to 1993 and you had 
responsibility for guiding their legal policy.
    One of the issues that you were involved in was the 
Endangered Species Committee, the so-called God Squad, which is 
really a Committee of high-level administration officials who 
were to convene for the purposes of exempting an action from 
the Endangered Species Act. I am assuming you are very familiar 
with this.
    Mr. Sansonetti. Yes. It has been 10 years but it was a very 
active part of my life in 1992. It was, I believe, only the 
third time that the Endangered Species Committee had ever been 
called together. There was the Teleco Dam, the Grey Rocks Dam 
and then this was the third time that the group was called 
together.
    I think the key import of my involvement in that, Senator, 
was that under the statute the solicitor is to be the general 
counsel to this special Committee and the secretary of the 
interior is to chair it along with, I believe it was several 
other Cabinet members were involved, individuals from the 
Department of Commerce, Agriculture, and the like.
    The toughest part of the job was that in this particular 
instance the petitioner was the Bureau of Land Management, an 
agency within the Department of the Interior, and one of the 
other agencies that was basically responding to that petition 
was the Fish and Wildlife Service, which is another agency 
under the same umbrella, the Department of the Interior.
    So I basically had to develop a system so that each group--
the Bureau of Land Management and the Fish and Wildlife 
Service--had representation from the body of lawyers that I had 
working at the Office of the Solicitor, put up a wall between 
the two so that they could each represent zealously their 
particular client, and then I had to make sure that I removed 
myself from the daily fray because it was my job to advise the 
secretary on what the law was.
    We ended up having an administrative hearing. A special 
judge was called in from Salt Lake City and that hearing was 
held actually in Oregon at the BPA headquarters for several 
weeks. At that time it was my job then to aid that 
administrative judge--his name was Harvey Schweitzer--through 
an act--by that I mean the portion of the act--that had never 
really been followed all the way through before.
    As I recall, the decision of the Committee was to grant in 
part and to deny in part the application of the Bureau of Land 
Management to allow timbering to go forward in areas that were 
considered critical habitat to the spotted owl. That particular 
decision was then voted on by the Committee as a whole. I do 
not remember the vote. It was a split decision, as I recall, 
maybe 5-2, and after the decision was rendered there was an 
appeal and, as I recall, the law requires the appeal to go 
straight to a circuit court, in that case the Ninth Circuit, 
and it was at that stage of the game that the Clinton 
administration came into power January 20, 1993 and I went back 
to Cheyenne, Wyoming. So that was my involvement in that 
particular experience.
    Senator Cantwell. If I could ask a couple of follow-up 
questions, thank you for that explanation. I think that was a 
good summation of that process.
    During that time, though, there were a couple of issues 
that came up during that process. Obviously it was a very 
sensitive process, given the issues that were at stake. But 
first the issue was a lawyer from the Fish and Wildlife agency, 
obviously representing BLM and the Fish and Wildlife agency, 
two different agencies within your jurisdiction, but the fish 
and wildlife agency responsible for arguing against the 
exemption--BLM wanting the exemption and Fish and Wildlife did 
not--the person responsible for arguing against the exemption 
resigned in protest after being instructed to remove legal 
arguments from the brief.
    So my question is if you were aware of that request for 
removal of that information from the brief and when did you 
become aware of it?
    Mr. Sansonetti. The answer to the question is, and I am 
glad that I was able to give the initial discussion because an 
associate solicitor for energy and resources--I think the 
gentleman's name was Paul Cruzi--was the individual in charge 
of representing the BLM and an individual that was an associate 
solicitor named Dan Shilito was in charge of the Conservation 
and Wildlife Division, which represented the Fish and Wildlife 
Service, they found that during the period of time that the 
hearing was going on that they needed additional help. A 
request came from both of them to my office to see if they 
could hire outside counsel that had expertise in the spotted 
owl arena and I said yes, they could go ahead and hire those 
individuals to be part of their team.
    The individual that you referred to that resigned, I 
believe his name was Parento, was one of those outside 
individuals who was hired. The circumstance was as you 
described. He wanted to make some changes in a brief or did not 
want to make some changes in a brief as he had been instructed 
by the associate solicitor, who was responsible for filing that 
brief.
    I had removed myself from any of the day-to-day 
representation of either the BLM or the Fish and Wildlife 
Service because it was my job to represent the secretary on the 
Committee as a whole that was going to receive that brief. So I 
never got down and touched either sides--
    Senator Cantwell. How did you remove yourself? Officially 
remove yourself?
    Mr. Sansonetti. I signed a document that said look, Mr. 
Cruzi, you are responsible for representing the BLM; Mr. 
Shilito, you are responsible with your team for representing 
the Fish and Wildlife Service; I am representing the secretary 
on the Endangered Species Committee.
    So I found out about what you are referring to long after 
the fact, which meant that the briefs were filed. This 
particular gentleman, who I never really even got to know 
because I was not part of that team, if you will, was the 
outside counsel who had been hired and he resigned. The brief 
was filed by the team representing the Fish and Wildlife 
Service.
    Senator Cantwell. Do you think that the associate solicitor 
should have recommended that those documents be suppressed? 
Basically his argument was that the Committee should have never 
been convened to begin with. Apparently from what you have just 
said, the associate solicitor advised him, the person from the 
Fish and Wildlife agency, on his documents and what should be 
presented and asked him to suppress that information.
    Mr. Sansonetti. I do not recall that particular part of 
what the argument was about. I do know that under the 
Endangered Species Act that the petition that began the process 
was one that was filed by the Bureau of Land Management. So I 
do not think that there is anything that the Fish and Wildlife 
Service could have done at the time to prevent the petition 
from being filed.
    And as far as the petition being dismissed is concerned, I 
think that it would have had to have been dismissed either by 
the BLM on its own account for some reason that it had changed 
its mind over desiring the exemption or the Endangered Species 
Committee itself. And, of course, they did not meet until there 
was the administrative hearing because they had wanted a 
hearing to attract all of the information from both sides 
before they rendered a decision.
    So if the dispute was over whether or not the petition 
should have been accepted, I think that would have been a moot 
question because the BLM had the right to file that petition.
    Senator Cantwell. I think maybe I will come back to this 
questioning after we allow some of my colleagues to make 
statements but I think the issue is that the overall agency 
basically giving legal advice to both entities prohibited one 
of the entities or suggested to one of the entities that they 
not present information, I think primarily because the argument 
was relevant to BLM in other arguments that they were making in 
other cases and consequently recommended that they not use that 
information.
    But we will get back to this because it is an important 
issue in the process because it, I think, speaks to the 
significant challenge of representing a variety of agencies and 
the processes and procedures of adjudication and comment 
period. But I would like to thank my colleagues and the 
chairman of the Committee for being here and we obviously, 
before reconvening, had a chance for opening statements so I 
would like to give the chairman and Senator Feingold an 
opportunity--
    The Chairman. Senator Feingold was already here. I will 
yield to him.
    Senator Feingold. Madam Chairman, do you intend that we ask 
questions at this point or--
    Senator Cantwell. If you would like to make an opening 
statement or questions; it is up to you.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Okay. I thank the chair and want to 
commend her for her leadership, particularly in this area on 
the Judiciary Committee. And, of course, I appreciate the 
courtesy of the chairman of the Committee.
    I am glad we are having this hearing today. I know that we 
were trying to get together to have a hearing, actually trying 
to work out the details on September 11, so I do not need to go 
much further as to the reasons for the delay but I am glad this 
is happening today.
    As you know, I have a strong interest in environmental and 
natural resources protection, which I would like to think is 
reflected in my legislative record. I share many of the 
concerns regarding the issues that senators have voiced today 
and you will hear from others on this Committee as well. I have 
worked with other members of this Committee in advocating for 
strengthening of federal environmental and natural resource 
law, including Senator Cantwell on her work on roadless policy; 
Senators Leahy and Durbin on mining law reform, Senator Durbin 
on protection of BLM lands in the West and our national 
monuments, and, of course, with Senator Kennedy, working with 
him to advocate retaining current federal court interpretations 
of takings law.
    We in this Committee and in the legislative branch have the 
opportunity and the privilege of being advocates for change as 
have you during much of your career in the Interior Department 
and as a lobbyist. However, as you know, the job for which you 
are now nominated requires you to also demonstrate for this 
Committee your ability to avoid the appearance of conflicts of 
interest in the conduct of your job and to defend impartially 
the United States federal environmental and natural resource 
laws, despite potential conflicts with your personal views.
    I am certain that in your time at the Interior Department 
you were required to show such impartiality and the questions 
that I am going to ask, Madam Chair, are in that spirit.
    First, Mr. Sansonetti, much of the material you submitted 
to the Judiciary Committee describes the body of work that you 
have done and tends to be regionally focussed on Western and 
Alaskan issues. However, we are a very diverse Committee with 
members representing many regions of the country. Would you 
tell me, in your time as solicitor and as assistant solicitor 
at Interior, were you able to specialize in particular areas of 
decision-making? In addition to your Endangered Species Act 
work, can you describe other policies upon which you worked 
that are more national, rather than regional, in scope?
    Mr. Sansonetti. Thank you, Senator. That is a very good 
question and I appreciate the opportunity to tell a little bit 
more about the previous experiences that I have had.
    I do come from a small town in Wyoming, Gillette, Wyoming. 
My practice was a local one to begin with and then it gradually 
developed into a specialty of environment and natural resources 
law because that is what Wyoming does. If you are an attorney 
out there, that is the type of clients that you have.
    When I came into the government for the first time it was 
as associate solicitor for energy and resources at the 
Department of the Interior. I had three main clients, if you 
will, within the department: the Bureau of Land Management, the 
Bureau of Reclamation and the Mineral Management Service. I had 
a group of about 41 lawyers, $3-4 million budget.
    The BLM lands are largely, of course, Western in nature so 
many of the issues that we got involved in dealt with the 
surface use of those lands--grazing, some timbering, oil and 
gas leasing, coal leasing. The Mineral Management Service was 
responsible for the royalty collections from there. I was also 
responsible for oil and gas leasing in the Gulf and Mexico and 
offshore. The Bureau of Reclamation has as its major chore to 
supply the water projects and to delve out the water already 
formed behind those water projects throughout the West.
    What I found was that the reach of the Department of the 
Interior is really all 50 states and questions that came up 
that cross-cut through the department can touch on things 
dealing with Indians. There is an associate solicitor for 
Indian affairs, for instance. Conservation and wildlife, which 
is our national parks, which are found in all the different 
states.
    So as an associate solicitor--there are five all told--I 
found myself continually working with those who were involved 
with reclamation at OSM, the national parks, Indian matters, 
and the like.
    That just broadened by a number of 100 when I got to be the 
solicitor myself. All of a sudden there were 225 attorney in 23 
cities all across the United States. So for that three years 
that I was solicitor I had an opportunity to work with folks 
out of regional offices in Atlanta, Boston, field offices in 
Minneapolis-St. Paul, which happened to be the area that 
covered your home state of Wisconsin, got into Indian gaming 
matters, which certainly took me from the Connecticut case, 
which kind of formed the predicate of the Indian Gaming 
Regulatory Act that was filed by former senator, then Governor 
Lowell Weicker, to those very same questions in California and 
Hawaii.
    We did a little group study of the associate solicitors and 
the deputy solicitor and myself at the end of my tenure and we 
found that during our three years that we had had matters that 
ended up touching 46 of the 50 states. And in that role I 
personally traveled to every one of those 23 field offices, 
from Anchorage to Atlanta, from Boston to Window Rock, Arizona, 
to make sure that I knew what was going on in those offices, 
got to meet the people personally and got a chance to work with 
the congressmen and the senators in those areas that had 
concerns about what the Department of the Interior was doing.
    Senator Feingold. Thank you for that answer. Now I would 
like to ask you about a matter. You appeared before a Senate 
Committee to testify on behalf of the National Mining 
Association in support of a measure to expand mining 
opportunities on federal lands controlled by the Bureau of Land 
Management. Companies are limited to leasing 46,000 acres of 
federal coal land in any one state and 100,000 acres 
nationwide. The legislation that you supported would have 
increased those limits to 75,000 acres in any state and 150,000 
acres nationwide.
    As the 3809 regulations and the milsite issues are 
controversial now and likely to be litigated, do you share a 
similar view regarding the need for additional lands in 
hardrock mining?
    Mr. Sansonetti. I think they are totally two different 
questions, totally two different questions between the need for 
additional lands for coal mining and that for hardrock mining. 
Of course, the hardrock mining comes under the 1872 mining law 
whereas the coal leasing comes under the 1920 Mineral Leasing 
Act, as amended.
    The nature of the question, and I am really glad you asked 
this one because some people just see the numbers and they say 
jeez, if something was 47,000 acres and now it is 75,000 acres, 
that is a big amount.
    The problem is merely this. Laws were passed right after 
World War II, later amended in the mid-'60s to make sure that 
no one or two companies could obtain a monopoly or an oligopoly 
over any of our minerals. There are these types of safeguards 
for all sorts of different minerals.
    As far as coal was concerned, the law was passed at a time 
before strip mining had become popular. The states that 
produced the majority of coal were places like Pennsylvania and 
West Virginia. Today Wyoming happens to be the largest producer 
of coal in the United States, then Kentucky and then I think 
Illinois, largely through strip mining.
    So the methodology for the extraction of coal made it such 
that 47,000 acres was already being bumped up against by the 
four or five or six major companies that were operating not 
only in Wyoming but in other states like Utah, which were 
affected. The amount of coal being taken out today from a 
Wyoming or an Illinois or a Kentucky are 20 times what they 
were back in the 1960s, so they needed to expand the limit so 
that existing companies did not have to stop and go out of 
business. So that was the purpose for the legislation and I 
believe it passed by the Senate and the House by large margins.
    Senator Feingold. I have just one more question. I thank 
the chair and especially the chairman of the Committee.
    As recently as April 2001 you were listed as a member of 
the Defenders of Property Rights Lawyers Network on the 
organization's website. That organization has testified several 
times before this Committee about the need to establish bright 
line compensation rules and change plaintiffs' rights in court 
actions which are now, I think, reflected in a bill, S. 1412.
    Is that a position you still hold, and, if so, is that a 
position you will give up upon becoming Assistant Attorney 
General?
    Mr. Sansonetti. I would like to ask you again what group I 
was supposedly listed in?
    Senator Feingold. You are listed, I am told, as a member of 
the Defenders of Property Rights Lawyers Network on that 
organization's website.
    Mr. Sansonetti. Mmm. I do not happen to be a card-carrying 
member of that organization. I would be curious to know how I 
got on it. I happen to be a fan of personal property rights and 
I think that the Fifth Amendment is there for a particular 
reason but I am no dues-paying member and I am not sure how I 
would have gotten onto that particular website.
    Senator Feingold. I take it the Committee can assume that 
we can work to have your name removed from that website.
    Mr. Sansonetti. I would be delighted to have you help me do 
so.
    Senator Feingold. Well, I thank you and again I thank the 
chair.
    Senator Cantwell. Senator Leahy.
    Chairman Leahy. Thank you, Madam Chair.
    Obviously if it is a group that is listing you as a member 
you would not need our help. That is something that simply a 
phone call from you would get it off there.
    Mr. Sansonetti. Yes.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Chairman Leahy. I want to thank Senator Cantwell. We are 
all doing triple duty around here and I thank her for taking 
the time to do this. Most of the members of this Committee have 
been out of their offices for several weeks now. Even on the 
day when we were evacuating the Capitol, we still held 
hearings, a number of nomination hearings of the Judiciary 
Committee and a number of votes to confirm people within the 
Committee. And Senator Cantwell has made it possible, being one 
of those who has helped very much in putting together hearings 
that could not be done otherwise.
    In your case we are talking about the Department of Justice 
environmental lawyers. They are the ones that have to ensure 
the preservation of wildlife, our indigenous people, have to 
preserve our natural resources, not just for us but for our 
children's children.
    Earlier this year during the confirmation hearing for the 
position of attorney general of the United States there was 
considerable discussion about what following the law means in 
relationship to that office because the Department of Justice 
is really in many ways the law office for the agencies of the 
federal government. I say this because they have a great deal 
of discretion not only in which cases to prosecute but which 
ones to decide not to prosecute or even which ones to drop.
    Environmental law is an important point in that case. The 
Department of Justice can provide a visible and responsible 
face for environmental law policy. I believe during the Clinton 
administration they showed stewardship and advocacy and they 
strengthened the federal government's institutional commitment 
to these important goals. In fact, they built up a very 
impressive cadre of professional talent, men and women lawyers, 
both Republicans and Democrats, who made those goals an 
impressive reality and I think it is essential that we continue 
the momentum that was created by them. I would like to see 
their accomplishments be built upon, not torn down.
    So a number of questions have come up, I know, by other 
senators and I have heard it and it actually raises a question 
with me. Mr. Sansonetti, I enjoyed my talk with you and a 
number of my friends have spoken very highly of you in both 
parties. They also noted that you worked long and extensively 
as a lobbyist for the largest coal companies in the country and 
I wonder what that means for some of the very important cases 
confronting the Environment and Natural Resources Division, 
what you do in those cases.
    I am concerned about things like the enforcement of the new 
source review provisions of the Clean Air Act, especially as it 
relates to coal-fired utility plants.
    And then the press says that the Bush administration is 
launching a quiet campaign to roll back environmental 
protections, not by seeking legislation, which would not pass, 
but by simply failing to enforce existing requirements; for 
example, refusing to defend pending cases, continuing to settle 
conflicts to the benefit of industry rather than environmental 
interests, almost by saying ``Go ahead and pollute; we don't 
give a hoot'' is really what it comes down to.
    We have seen this once before. This happened about 20 years 
ago where a lot of these environmental laws could not be 
repealed, they were passed by bipartisan majorities, so simply 
they would not enforce them. And I know that it is a tremendous 
power that the enforcers have. They can enforce a law that the 
Congress has passed or they can ignore a law or they can 
enforce it so weakly that it might as well be off the books.
    So I would ask, let us start with the new source reviews. 
The Clean Air Act requires such reviews whenever a major source 
of pollution, such as refineries and electric power plants, 
undergo major modifications. In the 1990s we saw vigorous 
enforcement of these requirements but now various energy 
interests, including the coal industry clients for whom you 
have been lobbying in recent years, are reportedly making 
efforts to rescind Department of Justice and EPA enforcement 
actions against energy producers under those new source review 
requirements.
    [The prepared statement of Senator Leahy follows:]

 Presentation on the Nominee by the Hon. Patrick Leahy, a U.S. Senator 
                       from the State of Vermont

    I welcome Mr. Sansonetti this afternoon.
    The position of Assistant Attorney General in the Environment and 
Natural Resources Division has always been important, but it is 
especially so as we begin a new century, ever more aware of the 
fragility of our existence and the importance of the Earth which 
sustains us all. Important as well is the effort we are all making to 
ensure that Americans faith in their government, and its many 
institutions, is deserved and preserved in the wake of the special 
strains that have been placed upon all of us, as individuals and public 
servants, since the terrorist attacks of September 11.
    We have all worked together to expedite the paperwork necessary to 
consider this important nomination and today, and I am pleased that we 
are able to proceed today.
    Having begun his career as a small firm practitioner, Mr. 
Sansonetti has most recently worked in the private sector as well. But 
between 1987 and 1993, he served as Solicitor in the Department of the 
Interior, as Chief of Staff to Representative Craig Thomas, and as 
Associate Solicitor at Interior. The person who fills this position as 
Assistant Attorney General not only needs the full confidence of the 
President and the Attorney General; he also needs the confidence and 
trust of the Congress and the American people. We all look to the 
Department of Justice's environmental lawyers to ensure preservation of 
our precious wildlife, protection of our indigenous peoples, and 
principled approaches to managing our nations natural resources.
    Earlier this year, during the confirmation hearings for the 
position of Attorney General of the United States, there was 
considerable discussion about what ``following the law'' means in 
relation to the responsibilities of that office. The Department of 
Justice, in many respects, is the law office for the agencies of the 
federal government. The Department and its officers have great 
discretion in what cases to prosecute, and which to settle or drop. 
Environmental law is an important case in point.
    The leadership at the Department of Justice plays an important role 
in providing a visible and responsible face for environmental law 
enforcement and policy development. The stewardship and advocacy 
provided during the eight years of the Clinton Administration 
strengthened the federal government's institutional commitment to these 
important goals, and built up an impressive cadre of talent in the 
Division to make those goals into impressive realities. It is essential 
that the momentum created by these dedicated public servants be 
maintained, and that their accomplishments be built upon, as we 
continue as a nation to address the critical issues our society faces 
in terms of caring for our nation's natural resources and handling our 
society's environmental responsibilities.
    With that said, there are several aspects to Mr. Sansonetti's 
nomination that give me cause for concern. They are reflected more 
broadly in the questions that I, and I believe other Senators, intend 
to ask today and in written follow-up, but I would like to highlight 
two of my most pressing concerns now. First, Mr. Sansonetti has long 
worked extensively as a lobbyist for the largest coal companies in the 
country, and I am very concerned that he will necessarily be recused 
from some of the most important cases confronting the Environment and 
Natural Resources Division because of that representation. But perhaps 
even more importantly, I am concerned that those ties will be reflected 
in his attitudes towards the many important issues dealt with in the 
Division, especially those involving enforcement of the ``new source 
review'' provisions of the Clean Air Act relating to coal-fired utility 
plants. The Bush administration is widely reported as having launched a 
quiet campaign to roll back environmental protections by simply failing 
to enforce existing requirements, refusing to defend pending cases, and 
continuing to settle conflicts to the benefit of industry rather than 
environmental interests. I am concerned about Mr. Sansonetti's role in 
these efforts, and whether he will be able to rise above his past 
practice and his apparent inclinations, in order to guarantee the 
American people the level of rigor and dedication that consistent and 
responsible enforcement of the environmental law demand.

    Chairman Leahy. Do you believe the new source review 
requirements are being met adequately in this administration?
    Mr. Sansonetti. Thank you for your question, Senator. And I 
did also enjoy our visit.
    I would say as starters to answer your question that one of 
the first things I did after I was nominated in May to prepare 
myself, if confirmed, to take over this task was to actually go 
back and visit with previous Assistant Attorney Generals that 
have held this particular job. In fact, I have tracked them all 
the way back to the Ford administration. So I did have an 
opportunity to sit down for a couple of hours with the 
immediate predecessor, Lois Schiffer, and visited with her 
about the way that she brought cases, when to bring them, when 
to dismiss them, how to reach consensus with the different 
departments, and I think that I would try to do the same thing 
if I were so fortunate as to be confirmed by the Senate.
    As far as the new source review is concerned, the law is 
the law is the law. Until you all in the legislative branch 
change it and the president were to sign that change into law, 
it is my view that it is the Department of Justice's job to 
enforce the law as it is written and to uphold that rule.
    Chairman Leahy. Do you see a less strict enforcement than 
has been in the last eight years?
    Mr. Sansonetti. I do not know that I would be a very good 
judge of that. I frankly have been practicing law in Cheyenne, 
Wyoming during this last eight and a half years so I have not 
been involved in cases at the Department of Justice concerning 
the new source review.
    Chairman Leahy. But you have talked with the people who 
were in charge of enforcing that law.
    Mr. Sansonetti. I have and to the extent that I have 
visited with the people that are at the Department of Justice 
right now, I think that it is my opinion that they are 
enforcing the law and that they are doing an evenhanded 
application of it.
    Chairman Leahy. Well, how recently have you been a lobbyist 
for the coal companies?
    Mr. Sansonetti. As a formal lobbyist it was on the bill 
that I was referring to Mr. Feingold about and so I believe 
that was in the last Congress, so that is when that would have 
been, in the 106th Congress.
    Chairman Leahy. Well, those same coal companies or many of 
those coal companies oppose enforcement of these laws. How do 
you do your balance from that? I mean if you have a new source 
review case in question do you recuse yourself from those 
questions, having so recently had a client who opposed them?
    Mr. Sansonetti. I think that as far as when and if and how 
I should recuse myself I am first of all, quite aware of the 
fact of how ones background measures up against the new job 
that you have. In this case, as I noted before, I am a lawyer 
from Wyoming and I was proud to have the clients that I had. 
But if confirmed, I would abide by the Department of Justice's 
recusal policies and they have a list of who my clients have 
been over these years and I would go see the ethics personnel 
at the Department of Justice and say, ``Is this a case I should 
be involved in or not be involved in?''
    Chairman Leahy. Well, let us take a couple of those 
clients. How about Peabody, Kennecott or Arch? Suppose you had 
cases directly involving them? Is that a black and white 
question for you?
    Mr. Sansonetti. I think if it is a matter that I personally 
dealt with or a subject matter that I specifically dealt with 
on behalf of those companies, yes, and I would have to recuse 
myself in that regard.
    Chairman Leahy. I am not talking about directly. I mean 
they might not have a case where they come in and say this case 
was pending earlier and counsel was Thomas Sansonetti; today's 
counsel is Mary Smith. There are related cases. You know the 
positions they took on how they felt this act should be 
enforced and now you have Peabody or Kennecott or Arch before 
you. Can you really, even if it is not the exact case you 
worked on, can you really separate yourself from that?
    Mr. Sansonetti. I think I can and I think that I have done 
so in the past. I think that to the degree that I have gone 
through this process twice before, the key to the answer to 
your question is that the attorney needs to keep in mind who 
his or her client is. I had those clients in the 1980s and when 
I became associate solicitor it was my job to enforce the law 
against those folks when they broke it.
    The same thing in the 1990s. I was responsible for the 
Office of Surface Mining that was the organization that chased 
those coal companies that did not reclaim as they should and I 
have never heard or been told that I did not do that job with 
vigor and I would do it again.
    Chairman Leahy. Well, you understand the appearance 
problem. I think Newsweek reported that you were in an energy 
lobbyist meeting at the American Petroleum Institute offices 
here in Washington, I believe, in January, helping develop a 
list of proposals for changes to federal environmental policies 
to forward to the new administration's transition team at the 
Department of Interior and then to Vice President Cheney's 
Energy Task Force.
    Now there is nothing wrong with doing that. A lot of people 
I know very well and have a great deal of respect for were part 
of the new president's transition team. I think it is great 
when people are willing to give that time to whoever the 
president is. But now you have been nominated to a position 
that will allow you to give effect to the laws as they exist or 
as they might have been changed by the task force 
recommendations and the lobbyists that you had worked with.
    Do you come into a situation where there is the 
appearance--for example, you made recommendations that there be 
certain changes or that there be less enforcement of such-and-
such a law and now you are in a position to do that. Are you 
going to raise a question of appearance in the public, a 
justifiable appearance in the public?
    Mr. Sansonetti. I am delighted that you highlighted this 
issue. I have heard this from a number of different folks and 
I--
    Chairman Leahy. I told you I would give you a chance to 
answer these questions.
    Mr. Sansonetti. I welcome the opportunity to answer that 
question.
    First of all, the Newsweek article that you referenced is 
one that I was never contacted by the writer of and I never got 
a chance to get my side of that story out. It was just hey, 
this person met with a group of individuals at the Petroleum 
Institute and heard what their ideas were as to what the new 
administration should do and somehow it had the connotation 
that that was bad.
    Let me state for the record that I was honored to have been 
asked to be part of the Bush-Cheney transition team. I was 
assigned to the Department of Interior team, given my previous 
experience there. As part of our duties assigned by the vice 
president, who was placed in charge of the transition, besides 
resume review, preparing Gale Norton for her hearings and the 
like, it was our job to do an outreach program with all the 
different entities that would have a stake in what the new 
policies of the Department of Interior would be.
    So while I did attend that particular meeting that you 
referred to that had individuals from the oil and gas community 
in it, I also held meetings with people from the Indian 
community from different tribes, I met with different 
environmental groups, I met with the Teamsters, different labor 
organizations, well over 20 different groups in meetings that 
were there. My job was just to extract from them what they 
thought the administration's policies would be.
    Chairman Leahy. Did you make any recommendations?
    Mr. Sansonetti. I wrote all of them down and turned them 
over lock, stock and barrel to the people that went over to the 
Department of the Interior. So recommendations, no.
    Chairman Leahy. Did you take part in any of the 
recommendations that were made for changes in the law or for 
enforcement of the law?
    Mr. Sansonetti. No, because our job was to gather the 
desires and facts of those that were out there and they were 
listed and delivered to those that went to the Department of 
the Interior.
    Chairman Leahy. Well, let me ask you on the specific ones, 
Senator Jeffords has introduced a bill, the Clean Power Act of 
2001, that would amend the Clean Air Act to require reduced 
emissions at coal-fired plants beginning in 2007. Along with 
requiring reductions in sulphur dioxide, nitrogen oxide and 
mercury emissions, it would require reductions in carbon 
dioxide emissions. The Bush administration has taken the 
position that carbon dioxide is not a pollutant that should be 
regulated. What is your view on carbon dioxide and is it a 
pollutant?
    Mr. Sansonetti. I am afraid that I do not have a position 
on it, Senator. It is an area that I am not familiar with. I am 
an attorney, not a scientist, so I do not know the answer to 
that.
    Chairman Leahy. Fine. So you would expect that you would be 
obviously ultimately controlled by whatever the 
administration's position was?
    Mr. Sansonetti. I believe that ultimately whatever the 
policy may be, it will come from those client agencies that you 
referred to earlier. Maybe it is EPA, maybe Interior will be 
involved but whatever is decided, I am sure that it will be 
decided there. My role as the managing partner, if you will, of 
a 400-person law firm would be to defend cases either brought 
against the United States or to bring them when enforcement of 
a law is required.
    Chairman Leahy. The Clean Air Act allowed grandfathering of 
older plants and this bill I just referred to would not allow 
the older, more heavily polluting coal-fired plants to escape 
regulations because of their age. I think it says that if they 
reach their 30th year of operation they have to comply with the 
new source review standards of the Clean Air Act or by five 
years after passage of the bill that Senator Jeffords has 
recommended, either one.
    The National Mining Association--you spoke for them at a 
hearing just last year; they said the reductions required are 
draconian. Do you believe that reducing greenhouse gas 
emissions is a reasonable objective of federal legislation?
    Mr. Sansonetti. I think that all of us in America are 
concerned about the potential negative effects of greenhouse 
gas and to the degree that they can be lowered, that that is a 
good result.
    As far as the National Mining Association's opinion on that 
particular issue is concerned, if they do not like the law as 
it is presently written then it is their chore to change it. 
Once I am in position as Assistant Attorney General, it would 
be my role to enforce the law as it is written.
    So consequently I would like to reemphasize that there is a 
difference and I hope it is one that is not confused, between 
my legal expertise and what I happen to have been working on 
and have that mixed with somehow that there would be a biased 
approach to law enforcement because those used to be my 
clients. That has not happened in the past and it will not 
happen in the future.
    Chairman Leahy. We have a vote on and I understand the 
chair wishes to recess. Who has the final say on whether to 
defend a suit or bring a suit? Is it EPA or ENRD?
    Mr. Sansonetti. Again I have not been inside the building 
so I do not know what the protocols are within. When I was at 
the Department of Interior, Interior made its recommendations 
on cases at the district court level, working with the 
attorneys within Justice and usually they were a matter of 
consensus.
    If there was a question on an appeal, if something should 
be appealed or not, then it was the solicitor general's office 
that had the final say.
    Senator Cantwell. Thank you. Since we do have a vote that I 
think is well under way, we are going to recess for 15 minutes 
and it is the chair's intention to hopefully reconvene about 
3:50. So we stand at recess.
    [Recess.]
    Senator Cantwell. The Senate Judiciary Committee will 
reconvene on the nomination of Mr. Sansonetti.
    Thank you for your indulgence today, for these numerous 
vote interruptions. I think we are safe for at least another 
hour here so I appreciate your hanging in there with us as we 
go through a variety of remaining questions.
    And I just will remind that members can submit questions in 
writing and that will be open for a week after this hearing and 
hopefully you can get the answers back to those written 
statements in an expeditious fashion.
    I would like to go back to some questions that we had 
started in my first round related to the Endangered Species 
Committee and your time at Interior and talk about for a few 
minutes the fact that there was a second issue involved in that 
decision as it related to the Oregon case. That basically was 
the fact that there was a challenge in the Ninth Circuit that 
the members of the should have been protected from ex parte 
contacts with the White House and I am not sure if you are 
familiar but basically the proceedings with regard to political 
pressure, there were some comments from the White House to the 
Committee as it regarded their decision and I wanted to discus 
that with you.
    As solicitor and counsel for the Endangered Species 
Committee you prepared a memorandum that asserted that the 
Committee proceedings qualified as a rulemaking rather than an 
adjudication under the Administrative Procedures Act and as 
that and as a result, the ex parte contacts between decision-
making members of the Committee and interested parties, such as 
the White House, were not prohibited.
    The Ninth Circuit subsequently found that not only were the 
Committee proceedings and adjudication, basically a quasi-
judicial process, but even if they had been a rulemaking, ex 
parte contacts with the White House should not have been 
allowed. So I would like you to tell me your basis of the memo 
for determining the contacts and to your knowledge what kind of 
communication did happen between the Committee and the White 
House at that time.
    Mr. Sansonetti. Boy, it has been a while and to be 
perfectly honest, I did not even recall that until you just 
read it to me.
    I guess the first thing is that I never was contacted 
myself by the White House. I think that the claimed ex parte 
contacts were probably made from the White House to members of 
the Committee themselves, perhaps the secretary or whatever. I 
was asked to evidently develop that memorandum as an aid to the 
people on the Committee as to whether or not they could receive 
input from the White House. Evidently I felt that the answer 
was yes, they could, the Ninth Circuit said no, you cannot.
    So if this happens again and we are under the same law 
because to my knowledge this particular portion of the ESA has 
not been revised or amended since 1992, there would be no 
contact allowed. At least that is what I am reading into your 
statement.
    Senator Cantwell. Do you know if other members of that 
Committee were contacted by anybody from the White House at 
that time?
    Mr. Sansonetti. I personally do not, no, but the question 
would not have come up if it had not occurred so I assume that 
there were contacts. I am just not sure who was contacted and 
by whom.
    Senator Cantwell. And to my earlier question you said that 
you, through memo or process, recused yourself from that 
process at the time, that you had not given counsel to the 
assistant solicitor who then advised the Fish and Wildlife 
agency.
    Mr. Sansonetti. That was once the petition was filed. In 
other words, up to the point where the petition by the BLM was 
filed for an exemption from the ESA, then all the questions 
dealing with the spotted owl matter were handled under the 
umbrella of the Department of the Interior. So I had charge at 
that point over all 225 attorneys. Once the petition was filed, 
that is when we had to look at the statute and try and figure 
out how do we implement this because it is not something that 
had happened very often.
    And in the for-what-it's-worth department category and 
getting back to a portion of my opening statement where I said 
that I hoped to be able to work with you and this Committee to 
make the laws better that we all want to enforce, after that 
exercise was over, having seen both the good parts and 
difficult parts of the statute to be able to implement, I 
obviously have some background now, what it is like to go 
through that process.
    So when and if the time comes for the Endangered Species 
Act to be reauthorized and changed for the better I hope I have 
a chance to visit with you about the entire process and how to 
make it better.
    Senator Cantwell. Well, do you think that this document 
where you said that you recused yourself exists in a fashion 
that the Committee could have access to it?
    Mr. Sansonetti. I do not know. I really do not remember. It 
has been too long. But there would have been guidance given to 
the two associate solicitors saying you represent the Fish and 
Wildlife Service, you represent the BLM, and the solicitor is 
representing the Endangered Species Committee.
    Senator Cantwell. In several articles that were written at 
the time, mostly in the Oregon newspapers, there was quite a 
bit of discussion about this because again in this sense, we 
had two agencies, one arguing for the endangered species and 
upholding and the other arguing against it, all within the 
purview of your responsibilities and one, it seems, assistant 
solicitor telling the agency not to present certain information 
that would have been damaging to the other agency. In that 
article it states that your responsibility included giving 
advise on litigation strategy to all agencies within Interior.
    So it would be helpful if we just had that document or that 
information. It would be helpful to the Committee.
    Mr. Sansonetti. Okay, I will see what I can do about 
finding it, tracking it down.
    Senator Cantwell. Thank you.
    I would like to turn now--I know my colleague from 
Wisconsin asked about mining issues so I would like to turn to 
another area. In a matter that you handled as solicitor of 
Interior you issued an opinion that was criticized by the 
District Court in Columbia for failing to comply with the 
public participation requirements of the Administrative 
Procedures Act. In this opinion you wrote that a provision of 
the mining law that protected the rights of surface landowners 
to be free from damage from mining did not apply to below-
ground or subsistence mining.
    The court did not take issue with the substance of the 
petition but it found that the Department of Interior ruling 
was a rulemaking governed by the Administrative Procedures Act 
and that Interior violated the acct by not allowing public 
participation in the form of notice and comment or preparing an 
environmental impact statement.
    The reason why I am bringing this up is because there are 
so many issues now with the administration on questions of 
environment, whether it is the roadless area rule or others in 
following the Administrative Procedures Act, so I just want to 
ask you a few questions about that.
    Specifically, do you agree with the decision of the court 
in this particular case, which was the National Wildlife 
Foundation versus Babbitt, that the Interior Department 
decision did not protect sensitive surface areas from the 
effects of subsistence mining and required public comment and 
preparation of an EIS? Do you agree with the decision?
    Mr. Sansonetti. Well, I frankly have no recollection of 
that decision and have not read it but to the degree that that 
is law then it does not matter whether I disagree with it or 
not. I will abide by it if that is what the law in place right 
now is, NWF versus Babbitt. Again I have not read it and am not 
familiar with its holding but if that is presently good law 
then I am bound to follow it.
    Senator Cantwell. I know we are bringing up questions from 
your past responsibilities and anything that you feel more 
comfortable with coming back to the Committee on is fine, as 
well, as you refresh yourself with information.
    So in general as it relates to the applicability of the APA 
in allowing public comment in that process regardless of the 
time and expense, you support that process or you do not--
    Mr. Sansonetti. I certainly do. I support do support the 
APA and I would note that the rulemakings that would be coming 
out of this administration will actually be coming out of 
places where I used to be, like the Department of the Interior, 
but also other agencies in departments like Agriculture, 
Energy, Defense and the like. So those rules are basically 
promulgated out there and they, of course, are going to need to 
abide by the APA in so doing and it is after those rules and 
regulations come into existence and are challenged that I would 
now get involved in it.
    So I will not be involved in the actual drafting of those 
rules over at Interior in this particular role as Assistant 
Attorney General if I were confirmed.
    Senator Cantwell. Well, let me ask you a question then that 
is a little more specific and that is the roadless area rule, 
which would protect 58 million acres of our national forest and 
this rule was developed by a multi-year process of public 
input, over 1.6 million public comments, and something that a 
lot of people across the country support enthusiastically.
    During his confirmation last January I asked Attorney 
General Ashcroft about this issue because I thought it was a 
clear case in which he may be coming into office on something 
that he may not have supported as a United States senator and 
may be coming in as attorney general to enforce a law that was 
done by the Administrative Procedures Act that would then be on 
the books but it may not be something that his new boss was 
enthusiastic about, so I thought it was a very relevant 
question for his hearing. And under oath he said, ``I will 
uphold and defend any rule that has the full force and effect 
of law.''
    And since that time and that commitment the Boise Cascade 
Timber Company has sued the Forest Service and sought an 
injunction preventing the rule from taking effect and the 
Department of Justice has done the following, basically in 
defense of the rule, which really has not been much a defense 
is my point because they've failed to impose the injunction on 
the merits, they read a prepared statement and made no 
arguments at the hearing on the issuance of the injunction, 
they filed a follow-up brief with the District Court that was 
virtually identical to the press release issued by the 
Department of Agriculture, filed no appeal of the granting of 
the preliminary injunction, and filed no briefs when the 
appeals to the injunction were filed by environmentalist groups 
which granted expedited review by the Ninth Circuit, and failed 
to appear at the hearing before the Ninth Circuit just two 
weeks ago.
    So here we have a rule that is basically on the books and 
yet we are not really defending it. So I guess my question to 
you is in your reaction to this do you think what the 
Department of Justice has done constitutes a defense of the 
rule?
    Mr. Sansonetti. Well first of all, I want to acknowledge 
that this is a very important issue. It is one that you and I 
discussed when we had a chance to visit last month and I know 
that this is high on your list of priorities. As a consequence, 
it is going to become high on my list of priorities.
    As you also know, I have not had the opportunity of being 
inside the Department of Justice yet so while I have been 
paying more attention since our visitation about the roadless 
rule as I have been following it in the newspapers, I have not 
yet had the opportunity to visit with whoever the attorneys are 
that are assigned to this matter inside the Department of 
Justice or read the briefs or the counterbriefs or, for that 
matter, visit with those that are at the Department of 
Agriculture that are responsible for enforcing the status of 
the rule as it exists.
    I will do that and if confirmed, I will visit with the 
Department of Justice staff, hopefully will learn from their 
expertise as to why these decisions were made. I do not know 
why they were made but I will find out.
    It is my position that if there is a law on the books and 
it has not been changed by Congress and the United States is 
sued on that particular application of that rule, then it is my 
job to defend the United States and all of its people.
    So I think it is going to frankly be more than 50 percent 
of my time that I am put in that position. In fact, while I 
have not memorized the numbers, I think that there are over 
9,000 cases, Senator, before this division--400 lawyers, 9,000 
some cases--and over half of them--I think it is around 55 
percent of them are defensive in nature, where the cases are 
there because someone sued the United States. About a third of 
them are offensive and the remainder are either criminal cases 
or fall into the other categories.
    So I will fortunately or unfortunately have a great deal of 
experience in situations as you describe.
    I would also note that in looking at the conflicts--you 
spelled out some of the conflicts that come because you have, 
say, two agencies in the same department at odds with one 
another--not only did I see that at Interior but you have 
Indian Affairs, Bureau of Reclamation, you could have all four 
of those agencies quarreling and then add in the fact that you 
could have the Forest Service involved at Agriculture, the Army 
Corps of Engineers involved in the Department of Defense. You 
can have three or four different departments, six agencies, all 
with a different position on a particular matter.
    One of my aims and one of my tasks is going to be to pull 
the people in from those different agencies, as well as their 
general counsels, and see if there is a way that we can reach a 
consensus on what ought to be done.
    Senator Cantwell. So does that translate into a position if 
you are confirmed that will defend the roadless rule on its 
merits and instruct the attorneys to begin a substantive 
participation in the case?
    Mr. Sansonetti. Well again, I am not going to characterize 
what they have done thus far as either substantive or 
nonsubstantive because it would be prejudging what somebody 
else has done that I do not know, but as far as where I go once 
I get into the building is concerned, I am going to say what is 
the status of the roadless rule? What is the law right now as 
it exists? Then I will say our job is to defend that--
    Senator Cantwell. And defend it substantively?
    Mr. Sansonetti. And to substantively defend it, yes, ma'am.
    Senator Cantwell. And does that change at all if, in fact, 
the administration is pursuing a new rulemaking during that 
same time period?
    Mr. Sansonetti. No, because as long as the law in effect is 
the law in effect, just because there is perhaps either an 
attempt here in the legislative branch of the government or in 
the executive branch of the government to change that does not 
mean that the law is not in effect. It is kind of like a 
reference to Senator Leahy's question about Senator Jeffords's 
three-pollutant bill. It is still here in the legislative 
branch. If that ends up being law then that is when I would 
have to be concerned about defending it or not.
    Senator Cantwell. Thank you.
    I would now like to talk a little bit about an issue that 
both Senator Leahy and Senator Feingold referred to and that 
was your past activities from a lobbying perspective. In the 
past year you have advocated for the expansion of mining rights 
by testifying before the Senate on behalf of the National 
Mining Association, various coal companies. What will you do to 
ensure your impartiality in applying mining laws should you be 
confirmed? And what are your plans on recusing yourself from 
specific matters?
    Mr. Sansonetti. I think that any time that I am going to be 
involved in a case that either involves lawyers that I know, 
clients that I have had over the last 25 years, I will abide by 
the Department of Justice's recusal policies. They have a whole 
group of folks, as I understand it, that are part of their 
ethics personnel that you go to and say here is the case, I 
represented these folks in 1994, it was about A, this is about 
B; is this something I should handle, not handle? And I will 
abide by their decisions. You need that kind of help and I will 
seek it.
    I also, since you referenced Senator Feingold's question, I 
want to go back and mention that just because a person lobbies 
on behalf of a company or an industry does not mean that they 
necessarily are beholden to every stance that that client or 
industry takes.
    I started, as I said, as a sole practitioner in Gillette, 
Wyoming in criminal defense. I have defended rapists and all 
that but I am not a rapist. I have represented folks all down 
the line.
    In regard to that particular matter on the coal that I was 
lobbying for, that ended up being passed unanimously by both 
the House and the Senate. It was very bipartisan and the 
Department of Interior was behind it, too. Secretary Babbitt 
was in favor of it and sent someone to testify, as well. So--
    Senator Cantwell. I think it is safe to say that if my 
colleagues all understood that point we would probably have 
more judges in both the Clinton administration approved faster 
and probably currently, too. People are definitely held 
accountable for their past practices and activities.
    So nothing beyond what the ethics or the specific 
requirements of the agency are?
    Mr. Sansonetti. That is exactly where I should go. I think 
it is best to let them help me through the ethical thickets as 
they occur. That is where I will go for my advise on matters.
    If I personally do not feel comfortable about taking a 
case, I will not.
    Senator Cantwell. And turning to broader enforcement 
questions if I could, and obviously that is one of the key 
responsibilities of the job, is enforcement and litigation. I 
might start actually with a broad question. You do not really 
actually have a lot of litigation experience in your background 
so I am assuming that you are planning on relying on the team 
of lawyers that will be working with you in that area.
    Mr. Sansonetti. Well, I may not have a lot of experience in 
trying cases, say, out of the EPA realm--clean air, clean water 
cases--but as far as litigation experience in and of itself, I 
have had well over 300 cases in front of judges, jury trials, 
appearances in front of the Wyoming Supreme Court. I have had 
some appellate cases. So I have had litigation experience, 
starting with criminal defense and going to a civil practice 
about 1982.
    But regardless, everyone at the Department of Justice that 
will be part of that team is a litigator and so yes, I will be 
counting on their experience and borrowing their legal 
expertise to aid me in that regard.
    Senator Cantwell. And even in areas where you basically 
disagree with the law or the regulation? We are facing with the 
administration a number of areas where valid rules may not be 
defended or litigation may not be brought maybe because there 
is a difference within the administration about that particular 
rule or process.
    So I am just asking as a nominee for attorney general for 
the Environment and Natural Resources section, do you believe 
that there is an obligation to defend the law and regulations 
even if you disagree with them?
    Mr. Sansonetti. I do.
    Senator Cantwell. And do you believe that the 
administration--I already asked you about the rulemaking 
authority.
    Let me turn specifically to a couple of issues that are 
important to my state but I think probably are significant in 
the larger issue of enforcement because I think they speak to 
the challenge that your agency has.
    First is the issue of Hanford, the Hanford Nuclear 
Reservation, which is our nation's worst Superfund site, which 
houses somewhere around 500 million gallons of high-level 
nuclear waste and it is basically located in aging tanks along 
the Columbia River. So the clean-up of this site is governed by 
an agreement between the state of Washington's Department of 
Ecology, Department of Energy, and EPA. It is called a triparty 
agreement and that agreement lays out specifically the 
milestones for how clean-up of Hanford must be done and the 
obligations that must be met.
    The state of Washington has been levying fines against the 
Department of Energy since July of this year amounting to 
$50,000 because of its failure to begin the construction of a 
waste treatment facility that was stipulated in the triparty 
agreement.
    So in the past the effort to move forward on this clean-up 
has been greatly aided when the Assistant Attorney General from 
the environmental section is a committed arbiter eon behalf of 
the clean-up, when he pushes the agencies involved to proceed 
with the agreement, with the triparty agreement.
    So as the nominee for this section can you provide me 
assurances that you will continue to honor this triparty 
agreement and make sure that the Hanford clean-up process stays 
on track?
    Mr. Sansonetti. I think that you touch on a question that 
may be specific to your state but you are correct; all 
Americans are concerned that those areas that are part of the 
Superfund sites are cleaned up. So I think in general I need to 
associate myself to previous experience of having had, as 
solicitor, to order certain agencies within Interior to clean 
up matters that had been left over from the World War II 
period. So I have had some experience with this.
    To the degree that the Hanford case, which I, of course, am 
not specifically familiar with but as I follow your explanation 
of where things are right now, it looks like that is going to 
have to be high on the agenda, as well. I need to find out who 
is working on that case within the Department of Justice and 
see what we can do to move the tripartite agreement forward so 
that we can get those milestones met and let us get this 
Superfund site cleaned up.
    Senator Cantwell. Well, this is an important issue as it 
relates to working within the administration because in this 
particular budget year the Congress has very much supported a 
budget that helps us meet that triparty agreement and our 
responsibilities. The administration has not. So there has been 
a very, very bipartisan support for meeting those obligations 
in both the House and the Senate and on both sides of the aisle 
but it is critically important that the administration 
understands that the breaking of that triparty agreement is a 
very serious matter beyond the relative small fines that are 
being paid today.
    I would like to go back if I could to the Endangered 
Species Act and an important decision that has recently been 
made and get your thoughts on it, although I think some of this 
process will play out prior to you actually being in a position 
to act on it. But on September 10 the District Court of Oregon 
issued an opinion that will have tremendous implications for 
the salmon in the Northwest and on the Endangered Species Act.
    In that decision the District Court found that the National 
Marine Fisheries Service had erred in deciding that in a 
proceeding to list a particular species of salmon as 
endangered, hatchery salmon and wild salmon of the same species 
could be separately considered in most situations. More 
importantly, the court immediately removed the coho from the 
endangered species list until a new administrative process is 
developed.
    The determination of whether or not to appeal this decision 
rests with the Division of Environmental and Natural Resources. 
Because the decision on taking an appeal to the Ninth Circuit 
will need to be made within the next couple of weeks you will 
not likely play a role in this. However, I would like to 
explore your views on the subject generally.
    If the decision in this case is not appealed we will be 
left with an unclear standard for the listing of salmon 
throughout the Pacific Northwest and face the possibility of 
inconsistent rulings on different species of salmon. So do you 
agree that in situations like this the value of having an 
appellate court ruling is extremely important and should be a 
major factor in consideration within the Department of Justice 
about whether to file an appeal, even where you may agree with 
the underlying substantive holding?
    Mr. Sansonetti. Well, again I have to acknowledge the fact 
that this is a question obviously of keen importance to you and 
to those in the Pacific Northwest but it also seems to be a 
case that could have implications nationwide as far as the ESA 
standard that you are referring to.
    I again am not familiar with what this particular case is. 
Is there a name of this case?
    Senator Cantwell. Yes, it is the Elisi Valley versus Evans.
    Mr. Sansonetti. The Evans case? I would obviously have to 
find out about the case once I went in but in general, because 
you were asking about what you do in general about cases when 
you appeal them and do not appeal them, it would be my practice 
to first start with the department from where this came from. 
If this one is NMFS, that would be the Department of Commerce, 
I take it, so I think it would be my obligation to go to the 
individuals at the Department of Commerce and say, ``How did we 
get in this particular situation? What is at stake? What is the 
policy that you are trying to evince here?'' And then seek 
their recommendations, as well. ``What is your recommendation? 
Do we need to appeal this, not appeal this?''
    And to the degree that it affects more than just the 
Department of Commerce and I sense from what you have told me, 
without reading the case, I sense from what you have told me 
that this could have an impact on, say, the Fish and Wildlife 
Service and the way that it handles recoveries of endangered 
species. Then I probably ought to make sure that people from my 
division go over to the Department of Interior, as well, and 
visit with the head of the Fish and Wildlife Service, maybe the 
assistant secretary for Fish, Wildlife and Parks. If it is that 
important it might even get to the secretary's level. Visit 
with the solicitor and say, ``How would this affect cases that 
you have on-going over here right now?'' Get that kind of input 
and from that hopefully be able to reach a consensus on what 
might be done.
    I know that sometimes cases are appealed and sometimes they 
are not.
    Senator Cantwell. But do you think it is an extremely 
important factor, the fact that a decision at the District 
Court level could have such significant impacts and have 
inconsistency with how we are handling--
    Mr. Sansonetti. It well might. And I think one of the 
things that would be interesting to know in any given case is 
where that other inconsistency may develop. In other words, is 
that judge in Oregon's decision going to be inconsistent with 
another judge, say within the Ninth Circuit's purview, in which 
case maybe the Ninth Circuit would be interested in trying to 
determine whether the judge in Billings, Montana or the one in 
Oregon was correct.
    But what if the inconsistency was with a judge in the 
Fourth Circuit or the First Circuit? You might have to consider 
where would you want that appeal to be brought, in which 
circuit? And, of course, appellate matters at that level are 
also dealt with with the solicitor general's area. That would 
not be a decision that would simply be a box that I could check 
off on. I would have to go visit with Mr. Olson and the people 
at the Solicitor General's Office because they are in charge of 
the ultimate appeal.
    Senator Cantwell. Well, we may submit some additional 
questions on that particular area but it is safe to say that 
there will be much discussion from that court decision.
    I would like to, and there is not an endless pile up here 
of questions for you. We will get through this; I assure you. 
And, as I have said twice now in the hearing and I will remind 
members who did not attend and their staffs that they can 
submit questions up to the following week for your response.
    But the last area is just generally your views on the 
enforcement tools within the agency and the fact that you will 
have decisions about prosecuting environmental crimes. By that 
I mean the willful violation of our environmental laws that 
result in pollution damage to our environment.
    So you have enormous discretion in making decisions about 
whether to proceed against polluters via a criminal prosecution 
or a less rigorous civil enforcement process. And I have often 
heard the view expressed that the environmental crimes are bad 
acts committed by good people, meaning that the industry 
polluters do not have the willful intent to violate the laws 
and pollute the environment.
    What are your views on the importance of enforcement as a 
tool to ensure protection of the environment and our natural 
resources?
    Mr. Sansonetti. That is an excellent question and obviously 
if confirmed, I would like to note that I would actually look 
forward to enforcing our Clean Air and our Clean Water Acts and 
for those that willfully and intentionally are harming our air 
and our water, I look forward to chasing them, and I have done 
it before. When I was at the Department of Interior our role 
there was smaller, it dealt with surface mining and things like 
that, those that abused the BLM lands, and I was not shy to go 
after those individuals that had intentionally done that.
    I believe that there will be in our Environmental Crimes 
Section--and I believe there are nine sections underneath this 
particular division, Environmental Enforcement and 
Environmental Defense and then the one you are referring to 
right now, which is Environmental Crimes Section, which has the 
ability to bring a criminal action against a polluter, as 
opposed to a civil action--that there are guidelines that are 
in place as to the things that one should consider before you 
file something criminally versus civilly.
    Senator Cantwell. What are your personal views?
    Mr. Sansonetti. My personal belief on it is that I would 
take into account was it a single perpetrator? Was it a company 
that is acting in concert with others? What is the nature of 
the damage? Did they know that there was going to be harm to 
the air or the water? Have they done it before? Was it somebody 
that had previously been convicted and paid a fine so they were 
chased civilly this time and they thought they could get away 
with it again and that they would just be chased civilly? Those 
are the kinds of folks I would come down hard on.
    Is it somebody that left a gate open by accident and 
something got out? That would fall perhaps less so.
    So I think you have to look at the facts of each individual 
case. You have to visit with the investigators because these 
things just do not pop up at the Department of Justice on their 
own; they are brought by either individuals at the Fish and 
Wildlife Service or they are brought by people from the EPA 
that have done the investigation and you need to sit down with 
them, say have similar cases been prosecuted criminally or 
civilly before, how did you reach this particular 
recommendation, and then go from there. A lot of it will be 
decided on the basis of the facts of a particular case.
    Senator Cantwell. And how do you deal with the challenges 
of making sure that those decisions are free from political 
interference? What approaches will you have to make sure that 
the Hill and the White House do not exert or are not perceived 
to be exerting political pressures on your division?
    Mr. Sansonetti. I suppose those things will happen. I mean 
you cannot keep somebody from placing a phone call to you or 
sending you a letter encouraging you to do A, B, or C. But 
again it is nothing that I have not deal with before. I mean I 
have had calls from the White House and from the Hill on both 
sides of any number of different issues and it is one of the 
toughest parts about the job.
    But in the end, as I mentioned in my opening statement and 
in my answers to Senator Leahy's questions, the key is to 
remember who your client is and the clients are the individuals 
that are part of our United States of America. And in the end 
will there be judgment that has to be utilized by myself? Yes. 
Am I going to be wrong sometimes? Probably. But I think that I 
can tell you that I will look at each case individually, look 
at the law, apply the facts to the law, and in an evenhanded, 
unbiased manner make my best judgment as to whether the case 
should be A, B, or C.
    I cannot avoid phone calls from certain individuals or 
letters or something like that that are trying to influence 
that decision. That will happen and it is part of the process. 
But in the end you have to look at the hard, cold facts that 
are there, the law, the precedents that have previously been 
set and make your judgment and go forward.
    Senator Cantwell. One last area that I neglected to bring 
up earlier which if you could comment on and that is in your 
role and responsibility for protecting and enforcing the rights 
of Native Americans. Obviously this is a position in which, in 
addition to prosecuting those who violate our environmental law 
you will be responsible for representing the United States in 
support of rights of tribes, especially those confirmed by 
treaties. The Native American community will be relying on you 
for litigation on issues including establishment and protection 
of water rights, protecting hunting and fishing rights, 
collection of damages and establishing reservation boundaries.
    If you are confirmed to this position will you be a 
diligent enforcer of Native American rights, particularly those 
conferred by treaty?
    Mr. Sansonetti. I would. Let me answer the question: I 
would be diligent in that regard. And you bring up a subject 
matter that I have had some experience with. Both when I was 
associate solicitor and as solicitor part of my legal venue 
concerned the Bureau of Indian Affairs and the assistant 
secretary for Indian affairs and many of the issues of a highly 
controversial nature got all the way to the secretary of the 
Interior and you have to deal with them. Indian gaming, Indian 
water, the rights to certain portions of the BIA budget are all 
of concern.
    But I recognize right off that trust the responsibility 
that the United States has to the federally recognized tribes 
in the United States, many of which are in your home state of 
Washington and several of which are in the state of Wyoming, 
and I think I have a reasonably good record with dealing with 
Indian questions during my previous tenures.
    And in private practice I have had an opportunity to work 
with any number of companies working with Indian tribes to 
improve their economic circumstances across the United States. 
I have probably had dealings with seven or eight different 
Indian tribes in the last eight years.
    So I recognize the issue, I associate myself with your 
concerns and if confirmed, I will work as best I can to uphold 
that trust responsibility to the Indian tribes as federally 
recognized by Congress.
    Senator Cantwell. Well, I thank you for your answer to 
today's questions and to the future answers that you will give 
on various questions. In ending this hearing I do not know if 
you have any additional comments that you would like to make 
but obviously our Committee has to make a decision about this 
position and your responsibility at a time when I think that 
many of us do have concerns about where the administration is 
heading and with you as the top law enforcer officer, that you 
are going to vigorously enforce the law and pursue those who 
are not abiding by it. So we look forward to further comments.
    Mr. Sansonetti. Thank you very much for your questions and 
the opportunity to have this hearing today, Madam Chairwoman.
    Senator Cantwell. Thank you. The hearing is now adjourned.
    [Whereupon, at 4:44 p.m., the Committee was adjourned.]
    [Questions and answers and a submission for the record 
follow.]

                         QUESTIONS AND ANSWERS

  Responses of the Nominee to questions submitted by Senator Cantwell

    Question 1: Please explain your understanding of the purpose of the 
APA and indicate how, if at all, your views about the procedural 
requirements of the APA have changed since the decisions in National 
Wildlife Federation v. Babbitt, 835 F. Supp. 660 (D.D.C. 1993.) and 
Portland Audubon Society v. Endangered Species Committee, 984 F.2d 1534 
(9th Circuit 1993).
    Answer: The purpose of the APA is to set out procedural 
requirements for various administrative activities, including 
provisions for notice find opportunity for public input. To the best of 
my knowledge, the decisions in the cited cases still stand, and if I am 
confirmed as Assistant Attorney General, I will give those cases the 
precedential and/or persuasive weight to which they are entitled.

    Question 2: Do you believe that modifications to valid rules are 
best made by complying fully with the APA process, which includes 
public notice and comment, and that often requires preparation of a 
detailed Environmental Impact Statement setting out the possible harms 
caused by the rulemaking?
    Answer: To the extent that modifications to existing rules amount 
to a rulemaking, then the modifications are, of course, governed by the 
requirements of the APA. The question of whether the modification of an 
existing rule requires preparation of an Environmental Impact Statement 
is an independent question to be determined by applying the 
requirements of the National Environmental Policy Act, and will depend 
on a factual analysis on a case-by-case basis.

    Question 3: At the beginning of the Bush Administration, 
implementation of many final rules were initially delayed for sixty 
days pursuant to a memo issued by Chief of Staff Andrew Card. Since 
that time, multiple rules have been suspended by invoking the ``good 
cause'' exemption of the APA. The exemption provides that an agency may 
act without providing public notice and comment when it finds that 
notice and public process are impracticable, unnecessary, or contrary 
to the public interest.
    Question a: In your view, does suspending a valid rule that a 
particular Administration does not agree with constitute a circumstance 
where public participation is impracticable, unnecessary, or contrary 
to the public interest?
    Answer: Public notice and comment are generally an important part 
of agency rulemaking procedures, but as this question notes, the APA 
itself contains an exception to its general notice requirements for 
rulemaking procedures ``when the agency for good cause finds . . . that 
notice and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest.'' 5 U.S.C.Sec. 553(b)(3)(B). Whether 
it rulemaking satisfies the requirements of this exception will be a 
highly fact-specific inquiry which the agency must make in the first 
instance, and which a court may ultimately review under the appropriate 
standards set forth in the APA.

    Question b: May an agency ever invoke the good cause exception 
where there is a sufficient time to solicit public comment before 
suspending a rule?
    Answer: The terms of the statute itself contemplate that there may 
be circumstances when, even though there is sufficient time to solicit 
public comment, the exception may he properly invoked. See APA 
Sec. 4(6)(13), 5 U.S.C. Sec. 553(b)(B) (empowering agencies to ``for 
good cause find[] . . . that notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest'') 
(emphasis added).

    Question 4: At your hearing you stated that you were either not 
familiar with, or did not recall, the case of National Wildlife 
Federation v. Babbitt 835 F. Supp. 660 (D.D.C.1993), in which the 
Federal District Court for the District of Columbia ruled that the an 
opinion you issued as Solicitor of the Interior (M-36971) was in fact a 
major action that required a full rulemaking process in order to comply 
with the Administrative Procedures Act. That opinion concluded that 
subsidence from underground coal mining was exempt from section 522(c) 
of the Surface Mining Control and Reclamation Act, that protects 
surface landowners and uniquely vulnerable property from potential 
mining damage. Having now had additional opportunity to review the SOI 
opinion and the District Court decision, please answer the following:
    Question a: What was the basis fur the determination that the 
decision to exempt subsidence mining did not require an APA ruler 
making process?
    Answer: Solicitor's Opinion M-36971, entitled ``Applicability of 
Sec. 522(e) of the Surface Mining Control and Reclamation Act to 
Subsidence,'' addressed a question of statutory interpretation 
involving which provision or provisions of SMCRA applied to subsidence 
resulting from underground coal mining operations. My legal conclusion 
that subsidence from underground mining was regulated exclusively under 
section 516 of SMCRA, and not under section 522(e), was based on an 
evaluation of the statutory language, its legislative history, past 
regulatory actions on this issue, and relevant case authority. National 
Wildlife Federation v. Babbitt (835 F. Supp. 654) did not address 
whether that opinion was subject to the APA, nor did the Solicitor's 
Opinion address that issue. The subject of National Wildlife Federation 
v. Babbitt was a Notice of Inquiry issued by the Secretary of the 
Interior.

    Question b: What was your role in the process of preparing the 
opinion and issuing the notice indicating that the Department had 
adopted the opinion of the SOI and would not be undertaking further 
rulemaking proceedings?
    Answer: Solicitors' Opinions are only written in response to 
requests from the Secretary of the Interior for a legal opinion. 
According to DOI regulations, such Opinions become binding on DOI if 
the Secretary concurs in them. In this case, the Secretary asked for a 
legal opinion regarding section 522(e) of SMCRA. To my knowledge, no 
Solicitor Opinion submitted to a Secretary has ever been subject to the 
Administrative Procedure Act's notice and comments requirements. 
Solicitor' Opinions are for the guidance and the use of the Secretary 
and those who work in DOI. As I did with all Solicitor Opinions that I 
authored, I reviewed this Opinion with Secretary Lujan, who signed the 
concurrence which made it binding on DOI. It is noteworthy that during 
the last Administration, DOI concurred with the legal conclusions 
contained in my Solicitor's Opinion M-36971 as evidenced by the 
``interpretative'' rule promulgated on December 17, 1999, at 64 Fed. 
Reg. 70,838, concluding that subsidence due to underground mining is 
not a surface coal mining operation and accordingly, is not prohibited 
under section 522(c) of SMCRA. It is my understand that Secretary 
Lujan's decision to issue the Notice of Inquiry, which was the subject 
of National Wildlife Federation v. Babbitt, was made after consultation 
with the Assistant Secretary for Lands and Mineral Management and the 
Director of the Office of Surface Mining.

    Question 5: You were asked a number of questions at your November 
6, 2001, nomination hearing about your roll; in the convening. and the 
operation of, the Endangered Species Committee (ESC), also known as the 
God Squad. Some of those questions focused on the inherent conflicts 
resulting from the fact that the two parties appearing before the ESC, 
the Bureau of Land Management (BLM) and the Fish and Wildlife Service 
(FWS), were both Divisions of the Department of the Interior, and both 
relied on the legal guidance of the Solicitor's office that you headed.
    a) You have agreed to provide to the Committee the document you 
executed as Solicitor, in an attempt to create firewall protections 
within tile Solicitor's office to ensure that both FWS and BLM had 
adequate and independent legal guidance. Please describe that document 
including whether it contains a formal recusal by you from involvement 
with the proceeding of FWS and RLM
    b) Please also .indicate whether that document sets forth any 
explanation or legal support for the Solicitor serving as legal advisor 
to the Secretary of the: Interior, to the Administrative Law Judge in 
the proceeding, and to the Endangered Species Committee its a whole.
    Answer: Rather than restate what the document contains, enclosed 
herewith for the Committee's convenience is a copy of the document 
which has already been provided to the Committee on November 13, 2001, 
by FAX.

    Question 6: At the first hearing convened by the Administrative Law 
Judge for the purpose of compiling a record to be presented to the ESC 
members, an attorney who had been hired by FWS for the proceeding and 
was under the supervision of an Associate Solicitor, advanced an 
argument to the Administrative Law Judge that the BLM application to 
convene the ESC for purposes of seeking the exemption had failed to 
meet the two required prerequisites, good faith consultation, and 
preparation of a detailed and specific Environmental Impact Statement, 
and that the request to convene the ESC should not have been granted by 
the Secretary of the Interior.
    Is it correct that in your role as Solicitor,. You provided legal 
guidance to the Administrative Law Judge on this question, and that 
after conferring with you he ruled that the argument by FWS that the 
prerequisites for convening the ECS out of order?
    Answer: It is correct that, as contemplated in the division of 
functions within the Office of the Solicitor for the entire ESC 
process, I provided guidance to the hearing officer presiding over the 
proceedings. (Judge Schweitzer was presiding over the hearing and the 
process, but did not act as the interim or ultimate decisionmaker and 
hence was not acting in the capacity that one normally associates with 
the term ``Administrative Law Judge.'') It is also correct that after 
the first hearing, the hearing officer determined that an argument made 
by FWS concerning the prerequisites for convening the ESC was not 
appropriately raised by tile FWS at that juncture. It is my 
understanding that this is because it was not within the sphere of 
responsibilities of the hearing officer presiding over the process.

    Question 7: At the conclusion of the ESC proceedings before 
Administrative Law Judge, Judge Schweitzer issued an order that a 
number of legal issues should be briefed by the parties, including the 
arguments originally advanced by FWS that the BLM had failed to satisfy 
the prerequisites for convening the ESC. According to a former FWS 
attorney, an Associate Solicitor with the Department of Interior 
instructed him to remove arguments from legal briefs to be presented to 
the ESC, and the FWS attorney resigned in protest. Does your 
recollection of these events differ in any significant way?
    Answer: My recollection of events was that at the conclusion of the 
ESC proceedings in January 1992, the hearing officer issued an order 
allowing the briefing of a number of issues, including the issue noted 
above. I understand that a brief setting out these arguments was 
withdrawn upon direction of the Associate Solicitor ultimately 
responsible for representing the FWS. I also understand that the 
withdrawal was based on mutual concerns of the FWS and the Department 
of Justice that the FWS not assert a position that could have been 
interpreted to be inconsistent with the position of the Administration 
in on-going litigation (Lane County Audubon Society v. Jamison) then 
being litigated before the Ninth Circuit Court of Appeals. I further 
understand that as a result of the direction of his supervisor that the 
argument in question be withdrawn, the outside attorney that had been 
hired by the FWS to represent it resigned.

    Question 8: At your hearing you testified that because of the 
firewalls you had crected within the Solicitor's office between 
yourself, and between attorneys providing advice to FWS and to BLM, you 
were not aware of these events at the time, but learned of them later. 
Please state exactly when you became aware that a member of your staff 
in the Solicitor's office had instructed removal of arguments ordered 
by the ALJ. and explain what, if any, action you took upon learning of 
these events.
    Answer: At no time did I suggest or recommend removal of arguments 
in briefs to be submitted to the hearing officer. I do not remember 
exactly when I became aware of the events recounted above, but I 
believe that I must have been aware of these actions by the time the 
hearing ended in Portland in January 1992. I did not take any actions 
upon learning of these events since decisions on the presentation of 
the FWS and BLM positions were to he made by the appropriate Associate 
Solicitor.

    Question 9: At your hearing, you also stated that, in your opinion, 
arguments challenging the Secretary of the Interior's decision to 
convene the ESC were not proper because the Committee had already been 
convened. Please state what process you believe should be followed in 
bringing a challenge to the decision to convene the ESC. Please explain 
why presenting that argument to the ESC itself and allowing the: ESC to 
certify the issue for consideration by a federal court would not be a 
proper process?
    Answer: The provisions of the Endangered Species Act setting out 
the steps for applying for an exemption generally provide that upon 
receiving an application for an exemption, the Secretary shall 
determine whether various requirements to qualify for an exemption have 
been met. 16 U.S.C. Sec. 1536(6)(3). If these conditions have not been 
met, the Secretary is to deny the application and the matter is not 
considered by the ESC. Generally, if a party believes the ESC should 
not consider an exemption, the threshold question is considered at that 
time by the Secretary. If the Secretary determines that the application 
should be denied at that stage, the decision is subject to judicial 
review. The Endangered Species Act also allows the review of ``any 
decision'' rendered by ESC and does not appear to contemplate a 
separate certification process by the ESC for what the Court of Appeals 
should review in the course of ESC's decisionmaking process and 
outcomes.

    Question 10: Is it correct to state that, due to the actions of 
members of the staff of tile Office of the Solicitor of the Interior, 
arguments challenging the Secretary of the Interior's decision to 
convene the ESC: on the grounds that BLM had not satisfied the 
prerequisite requirements were never presented to the ESC members?
    Answer: It is correct that ESC members did not consider whether the 
prerequisite conditions for convening the ESC were present in this 
case. After the first hearing, the hearing officer determined that an 
argument made by FWS concerning the prerequisites for convening the ESC 
was not appropriately raised by the FWS at that juncture. It is my 
understanding that the hearing officer made this determination because 
it was not within the sphere of his responsibilities.

    Question 11: During the ESC process you played a number of roles. 
You served as Interior Secretary Lujan's designee on the ESC, as 
counsel to Secretary Lujan, as counsel to the full ESC, and as legal 
advisor to the ALJ. Moreover, although you testified that you created 
firewalls within the Solicitor's office, your office continued to 
provide legal advice to both parties before the ESC, the FWS, and the 
BLM. In hindsight, do you believe that providing counsel to the ALJ and 
to the Secretary at the same time presented conflicts that should not 
be repeated in a future ESC proceeding?
    Answer: No. I believe that providing counsel to the hearing officer 
and to the Secretary was consistent with the letter aid the spirit of 
the Endangered Species Act. The ESA provides that ``if the Secretary 
determines that the federal agency concerned and the exemption 
applicant have met the requirements. . . . he shall, in consultation 
with the Members of the Committee, hold a hearing on the application 
for exemption. . . .'' 16 U.S.C. Sec. 153G(g)(4). In this case, the 
Secretary chose the hearing officer that presided over this hearing. 
Since under the statute, the hearing was the responsibility of the 
Secretary and the Secretary selected the hearing officer, serving as 
the chief legal advisor to both the Secretary and the hearing officer 
was not a conflict. (I should note that I did not serve as the 
Secretary's ``designee'' on the ESC.)

    Question 12: Do you believe that bringing in separate counsel for 
the parties, FWS and BLM rather than keeping the supervision of the 
legal arguments being advanced by both parties within the Solicitor's 
office would have protected the ESC against allegations of conflict of 
interest?
    Answer: It is possible that other staffing arrangements could be 
considered, but I believe that the approach that I adopted was in 
accordance with the statute and the regulations in existence at the 
time. Moreover, it is probable that any alternative arrangements in 
such a contentious proceeding would have given rise either to 
allegations of conflict or some other serious concern, such as a lack 
of sensitivity to how positions taken in one agency matter can have 
adverse consequences for the public interest in another agency matter.

    Question 13: You testified at the hearing that you did not have ex 
parte contacts with the White House during the ESC process, but that it 
was possible that other ESC members may have. Did you believe that 
those contacts were acceptable at the time, and do you continue to 
believe that individuals serving in an adjudicatory role like the ESC 
should refrain from ex parte contacts with interested parties?
    Answer: It was my legal conclusion at the time that the Endangered 
Species Committee exemption process was an informal rulemaking rather 
than an adjudication, and further that because it was an informal 
rulemaking, ex parte communications with members of the ESC were not 
prohibited. However, I am not personally aware that there in fact were 
such communications. In its ruling in Portland Audubon Society v. 
Endangered Species Committee, the Ninth Circuit ruled that the ESC 
exemption process was an adjudication and that ex parte contacts were 
not appropriate. To the extent that that decision is still the law, if 
confirmed as Assistant Attorney General, I will ensure that its 
requirements are met.

    Question 14: Should the ESC be convened again in the future, if you 
are confirmed as the Assistant Attorney General for the Environment 
section, you may play an advisory role in its structure and in 
defending it against any legal challenges. Do you believe that in any 
such future proceeding, additional protections against inherent 
conflicts of interest and against political pressure should be 
implemented?
    Answer: Any such decisions would be the primary responsibility of 
the Department of the Interior. I would, however, be open to 
considering and supporting appropriate possible safeguards against 
conflict or political pressure, real or perceived.

    Question 15: A decision was recently made by the National Marine 
Fisheries Service and the Department of Justice not to appeal the 
decision of the Oregon District Court in the case of Alsea Valley 
Alliance v. Evans, and to instead initiate a new rulemaking aimed at 
creation of a new hatchery policy for Pacific salmon. Do you agree that 
all petitions or court challenges that seek to remove salmon not 
directly implicated in the Alsea Valley Alliance v. Evans decision from 
the protections of the Endangered Species Act should be stayed pending 
the outcome of the rulemaking on a new hatchery policy?
    Answer: Although I am generally aware of the concerns about the 
protection of Pacific salmon under the ESA and I know this is an 
important issue to you, I am not familiar with the facts of the case in 
question or of any petitions or court challenge that may be pending 
regarding salmon not directly implicated by that case. Without 
obtaining a much more thorough understanding of the difficult issues 
surrounding these concerns and any such litigation, it would not be 
appropriate to express an opinion regarding a possible stay of such 
petitions or court challenges. If confirmed, I plan to become fully 
educated on this issue.

    Question 16: What is your view of the role of state attorneys 
general relative to the U.S. Department of Justice in our system of 
government?
    Answer: With respect to the work of the Division, I believe that 
the state attorneys general should be viewed as partners in the 
Department's effort to enforce the environmental laws in a fair and 
firm manner, and that we should develop cooperative working 
relationships to resolve any concerns or issues that may arise in the 
arena of environmental and resources law.

    Question 17: Do you believe that lawsuits brought by state 
attorneys general collectively, and aimed at addressing national 
problems, are a useful way of addressing national legal issues?
    Answer: Yes, 1 believe that in some situations they can be one 
useful way of addressing national legal issues.

    Question 18: What specific cooperative efforts would you like to 
see the state attorney generals undertake in coordination with the 
Environment and Natural Resource Division to address national 
environmental issues?
    Answer: If I am confirmed as Assistant Attorney General, I would 
encourage the state attorneys general to work with the Division on 
environmental enforcement initiatives of national and regional 
significance in both the civil and the criminal context. I would strive 
for greater cooperation in developing such initiatives and in sharing 
information to mutually support our efforts in this area, both by 
communicating directly with state attorneys general and through the 
National Association of Attorneys General.

    Question 19: If confirmed, will you respect the efforts of those 
states that demonstrate the intent and capacity to enforce federal 
standards through the exercise of state authority by working 
cooperatively with those states? If so, in what ways will you 
demonstrate that commitment?
    Answer: Yes. If confirmed, I will demonstrate this commitment by 
reaching out to cooperate and develop strong working relationships with 
the Division's enforcement counterparts in those states, and in the 
states more generally. I would encourage the state attorneys general to 
work with the Division on environmental enforcement initiatives of 
national and regional significance in both the civil and the criminal 
context. I would also strive for greater cooperation in developing such 
initiative and in sharing information to mutually support our efforts 
in this area, both by communicating directly with state attorneys 
general and through the National Association of Attorneys General.

    Question 20: Will you work both in the courts and in Congress to 
ensure that federal agencies such as the Departments of Energy and 
Defense, which are responsible for some of the most polluted sites in 
the nation, are accountable for complying with state environmental and 
natural resource management laws?
    Answer: Just as it is important that private parties take 
responsibility for pollution they may have caused, so too is it 
important that federal agencies comply with all applicable 
environmental and natural resource laws, including all applicable state 
laws in this area. To the extent that federal agency compliance with 
such state laws is an issue in matters handled by the Division, I will 
work to ensure that those agencies comply with the law.

    Question 21: As the Assistant Attorney General for Natural 
Resources, you will be charged with guiding the litigation strategy in 
hundreds of cases and in supervising over 400 experienced environmental 
litigator. You would oversee attorneys in cases before state and 
federal courts, as well as federal agencies, and would be called upon 
to advise the rest of the Justice Department and to make decisions on 
behalf of other Departments including the EPA and Interior when the 
need arises. At your hearing you stated that you have handled over 300 
litigation matters, yet can your questionnaire that was submitted to 
the Committee you indicated that you had tired to judgment 
approximately 50 matters. Could you provide clarification about your 
litigation experience, and provide details of the ten most recent cases 
in which you have been the primary person responsible for litigation 
strategy.
    Answer: As this question indicates, I have extensive litigation 
experience. Since 1976, I have handled over 300 litigation matters 
dealing with civil and criminal law, and of those 300 matters, 
approximately 50 have been litigated through trial to judgment, which 
also gives me considerable experience as a trial litigator, experience 
that I hope will serve the Division well if I am confirmed. Of the 
remaining 250, those that are not ongoing have been resolved by 
settlement. What these numbers also demonstrate is that I strongly 
support settlement of matters where appropriate. Litigating a matter 
through trial can be a very expensive proposition, both in terms of 
resources and time expended, and it is often in a client's best 
interest to settle a case and obtain the certainty that it needs to 
proceed with its business, rather than await what may turn out to be a 
less favorable outcome after a trial. I also note that in my tenure as 
Solicitor at DOI, I gained considerable experience supervising large 
numbers of lawyers and developed great respect for the expertise and 
judgment of career attorneys working in public service.
    Although I am prohibited from revealing specifics about cases that 
I have worked on by my bar associations' ethical requirements 
pertaining to attorney-client privilege, I can give you a general sense 
of the types of litigation matters that I have worked on recently. I 
have recently litigated an Endangered Species case in federal district 
court in Alabama, a grazing case in federal district court in Idaho, a 
tort case in state district court in Wyoming, approximately five cases 
before the Interior Board of Land Appeals (involving, for example, 
pipeline easements), and a case involving Indian jurisdiction before 
the Interior Board of Indian Appeals. As these cases show, I have 
diverse recent experience in litigating natural resource issues.

    Question 22: If you are confirmed, will you work to support the 
enforcement authority and resources of federal environmental and 
resource protection agencies, both in the courts and the legislature?
    Answer: Yes.

    Question 23: Do you believe that, in representing agencies in 
court, the Department of Justice's client is simply the agency or does 
the Department also represent the public and the broader interests of 
United States citizen?
    Answer: There is an Opinion of the Office of Legal Counsel of the 
Department of Justice that addresses this issue entitled ``The Attorney 
General's Role as Chief Litigator for the United States,'' dated 
January 4, 1982, and signed by Theodore B. Olson, who was then the 
Assistant Attorney General for the Office of Legal Counsel and is now 
the Solicitor General. (This opinion is available on Westlaw at 1982 WL 
170670.) The Opinion reaches the conclusion that the Attorney General 
must serve the broader interests of the United States as a whole in 
carrying out his professional duties as well as the interests of the 
``client'' agency. It is my understanding that this Opinion still 
stands and I concur with its conclusion.

    Question 24: One of the less prominent responsibilities of the AAG 
for ENR is the investigation and prosecution of takings of protected 
wildlife and marine species through poaching and far trade on the black 
market. Between $10 billion and $20 billion in plants and animals were 
illegally traded last year, with the buyers in the United States 
leading the list of violators, at about $3 billion. If you are 
confirmed will it be a priority for you to prosecute those who seek to 
profit form trade in endangered species?
    Answer: It is my understanding that the ENRD has had a number of 
successes in the past few years in prosecuting those who seek to 
illegally import protected species into the United States, and if 
confirmed, I hope to work with the law enforcement agencies who are on 
the front lines of uncovering such violations to carry on this effort.

    Question 25: On October 30, 2001, the Bureau of Land Management 
announced that it had modified a Clinton Administration decision by 
revising a rule on hardrock mining limiting, the Bureau of Land 
Management's discretion to bar mining where it would cause 
``substantial irreparable'' harm. In your opinion and given your 
expertise on mining issues, why is it necessary to limit agency 
discretion to deny a permit when the mine would cause substantial 
irreparable harm?
    Answer: Although I am generally aware of this announcement and the 
rule at issue, I believe that this rule is the subject of ongoing 
litigation being handled by the Division and it would be inappropriate 
for me to express an opinion on this question before becoming fully 
informed on the reasoning behind the relevant opinion.

    Question 26: Is it your intention to recuse yourself from 
involvement in any legal challenges to this specific rule?
    Answer: With regard to this question and any other question 
concerning recusal, I intend to consult with the appropriate officials 
in the Department and to abide by my ethical and professional 
obligations both as a Department of Justice official and as a member of 
the Wyoming and District of Columbia bars.

    Question 27: Under former President Bush, a policy of no net loss 
of wetlands was created. The Army Corps of Engineers last week 
simultanoeusly announced that it would step up efforts to make certain 
that developers are meeting the requirements of the ``no net loss'' 
policy by rebuilding or purchasing wetland property for preservation, 
but it would also modify the permitting process, making it easier for 
developers to demonstrate that the proposed dredging or filling 
wetlands will result in ``minimal impact to aquatic environments.'' Do 
you agree that in order for wetlands to be preserved that developers 
should be required to replace the destroyed wetlands can an acre by 
acre basis?
    Answer: I support the goal of the ``no net loss'' policy regarding 
the nation's wetlands and the efforts that are being made to achieve 
that goal by the agencies that hive primary responsibility for the 
wetlands protection program under the Clean Water Act, the United 
States Army Corps of Engineers and the United States Environmental 
Protection Agency. To the extent that these agencies, which have 
special expertise in this area, believe that replacement of wetlands on 
an acre-by-acre basis is an important component of achieving that goal, 
I support them in that view.

    Question 28: Do you agree that developers granted permission to 
dredge and fill wetlands should be granted discretion to replace 
destroyed wetlands with hedges or other vegetation instead of new 
wetlands if they think that would better protect the environment?
    Answer: It is my understanding that the Department of Justice is 
not responsible for granting permission to dredge and fill wetlands 
protected under the Clean Water Act--this responsibility falls to the 
United States Army Corps of Engineers working with the United States 
Environmental Protection Agency. It is further my understanding that 
these agencies typically work with permit applicants to resolve issue 
concerning the appropriate mitigation for the dredging and filling of 
wetlands as part of the permitting process, and that there are 
published guidelines regarding such mitigation.

    Question 29: The Clean Air Act New Source Review Program has led to 
a number of very significant settlements over the past two years. As 
part of the President's National Energy Policy document, released in 
May 2001, the Department of Justice was asked to review the program.
    Question a: Do you agree with the need for such a review? If so, 
why?
    Answer: The President's direction is consonant with the obligation 
of any new Administration to familiarize itself with litigation on-
going at the time of transition. Moreover, it is not unusual for a new 
Administration to engage in comprehensive review of initiatives which 
may affect questions of national concern such as energy resource.

    Question b: In your view, and given the recent settlements, what is 
the benefit of such a review?
    Answer: I am not familiar with the review process or its 
conclusions so I am not in a position to opine on what the benefit to 
the Justice Department initiative may be. I generally believe that any 
review of ongoing litigation can provide important benefits in that the 
process helps familiarize new agency officials with significant actions 
that have been taken or are ongoing.

    Question 30: Over the past few months the Department of Justice was 
involved in settlement discussions in a case challenging a regulation 
banning snowmobiling in Yellowstone and Grand Teton National Parks. The 
discussions were allegedly conducted with the plaintiff machine 
recreational interests and included no public process and no input from 
interested environmentalists or surrounding residents.
    Do you believe that the Department of Justice should enter into 
settlement negotiations that have the potential to alter a valid rule, 
or is the public interest better served by the Department advising the 
agency to seek a modification of the rule through a rulemaking process?
    Answer: In settlement negotiations in cases involving a challenge 
to regulations, there is often the potential to alter a rule because 
this is typically the goal of the challenge. To foreclose settlement 
discussions on this basis alone would therefore foreclose many 
situations in which it is possible to obtain a ``win-win'' situation 
for the public as well as the parties through an innovative settlement. 
Whether the public interest is better served by a settlement (which 
might for example include a commitment to engage in a proposed 
rulemaking), by litigating the case to judicial decision, or by resort 
to modification of a rule through a rulemaking process will depend on 
the facts of the given situation and should be decided with reference 
to those facts and the applicable law.

    Question 31: The Supreme Court has recognized that a compensable 
``total taking'' occurs whenever a private landowner is deprived of all 
``economically beneficial use'' of his or her property. The question 
often arises how to define the property that is deprived of all value. 
In the recent case of Palazzolo v. Rhode Island 121 S.Ct. 2448, 2457 
(2001), the United States filed an amicus curiae brief stating that 
``it is well-established that `total taking' analysis involves 
examination of the parcel as a whole.'' The Court did not resolve the 
issue. In future litigation, would you advise the United States to take 
the same position as it took in Palazzolo, that, for purposes of 
takings analysis, the ``property'' in question is the parcel as a 
whole, rather than some discrete portion of the parcel?
    Answer: As noted in the question, the Supreme Court in Palazzolo 
did not resolve how to define the scope of the property interest that 
must be deprived of all value to constitute ``total taking.'' The lower 
courts will need to address this open issue on a case-by-case basis 
examining the facts of the matter before them. For example, the Federal 
Circuit in Rith Energy, Inc. v. United States rejected a lessee's 
contention that the alleged 91 percent reduction in the amount of coal 
Rith could mine constituted a categorical taking, 2001 WL 1380899 (Fed. 
Cir. Nov. 5, 2001). The Federal Circuit noted that the Palazzolo Court 
rejected the contention that a 94 percent diminution in value 
constituted a taking. Accordingly, given what will be an active, 
evolving area of the law and the factual nature of the inquiry, any 
advice I would give, if I am confirmed as Assistant Attorney General, 
would depend on lower court precedence and the facts in the case before 
me.

    Question 32: Palazzolo also presented the question whether a 
takings claim is barred because the regulations causing the property to 
diminish in value were already in place at the time the landowner 
acquired that property. Palazzolo squarely rejected a rule that a 
``purchaser or a successive title holder . . . is deemed to have notice 
of an earlier-enacted restriction and is barred from claiming that it 
effects a taking,'' Id., at 2462. However, Palazzolo is less clear on 
the Question whether the timing of a regulation's enactment relative to 
the date of title acquisition is ever relevant to takings analysis. 
What position would you advise the United States to take on this issue? 
Under what.circumstances, if any, would you advise that post-regulation 
transfer of title may defeat a takings claims?
    Answer: The area of takings law presents difficult issues 
concerning the appropriate balance between protecting private property 
rights and allowing necessary governmental activities. The 
environmental arena is only one of the many in which takings issues 
arise, and litigation positions with regard to those issues must be 
carefully coordinated throughout the Department, particularly with the 
Environment Division's career staff that have much experience in this 
area, the Solicitor General and the Civil Division. Moreover, the 
analysis of such issues is often very dependent on the facts presented 
by any particular case. Accordingly, the advice that I would give on 
this particular issue, which is an especially complex one, would depend 
on the facts and posture of the case and would also require close 
coordination with other affected parts of the Department and the 
relevant agencies.

    Question 33: In Lucas v. South Carolina Coastal Council, 505 U.S. 
1003 (1992), the Supreme Court held that when the government deprives 
property of all ``economically beneficial use,'' the government has 
taken that property, unless the government's action merely enforces 
``restrictions that background principles of the State's law of 
property and nuisance already place upon land ownership.'' There 
appears to be some confusion over whether those permissible 
``restrictions'' constitute a State's nuisance laws and other common 
law limits on property use, or instead include more general statutes 
directed at substantial public harms. What position would you advise 
the United States to take--that the government may, without 
compensation, deprive land of all value only when so doing implements 
common law property rules, or that the government may do so in a 
broader class of cases?
    The question of what constitutes ``background principles of law'' 
raised by the Lucas decision presents an important question which is 
subject of the Supreme Court's decision in Paloazzolo, as well as 
significant legal scholarship and lower court interpretations. 
Therefore, before adopting a position on this question on behalf of the 
United States, I would look to these sources to gain a thorough 
grounding in the pertinent legal issues. However, even after 
establishing a thorough grounding in these questions of law, it is 
difficult to respond in precise terms to this question without a 
knowledge of the facts of whatever particular case(s) may be involved. 
What is a background principle of law for takings purposes could 
conceivably vary from factual setting to factual setting, and depend 
upon the evolution of the specific area of federal or other law 
involved.

    Question 34: In January 1993 just prior to leaving office as 
Solicitor of the Interior, you issued controversial decisions denying 
fundamental powers of self-governance to Alaska Tribes and denying a 
trust relationship obligation between the United States and Native 
Hawaiians.
    Question a) Please explain you rational behind these opinions and 
respond to Clinton Administration Solicitor John Leshy's withdrawal of 
your opinion M-36978 on January 19, 1993.
    Answer: This question appears to refer to two Opinions that I 
issued as Solicitor of the Interior: ``Governmental Jurisdiction of 
Alaska Native Villages Over Land and Nonmembers,'' Sol. Op. M-36975 
(Jan. 11, 1993), and ``The Scope of Federal Responsibility for Native 
Hawaiians under the Hawaiian Homes Commission Act,'' Sol. Op. M-36978 
(Jan. 19, 1993). These Opinions are quite lengthy and explain in some 
detail the rationale for their conclusions; accordingly, I am providing 
copies of both for the convenience of the Committee.
    Regarding Sol. Op. M-36975, that Opinion concludes that lands 
conveyed to Alaska Native corporations pursuant to the Alaska Native 
Claims Settlement Act of 1971 (``ANCSA'') did not constitute ``Indian 
country.'' A unanimous United States Supreme Court later reached the 
same conclusion in Alaska  v. Native Village of Venetie Tribal 
Government, 118S. Ct. 948 (1998). It is notable that my Opinion 
concludes that, notwithstanding the absence of Indian country, many 
Alaska Native villages retain their sovereign status and may exercise 
governmental jurisdiction over their members. If I am confirmed as 
Assistant Attorney General, I will continue to respect and enforce all 
obligations and responsibilities owed to Alaska Natives under federal 
law.
    Regarding Sol. Op. M-36978, that Opinion concludes that ``the HHCA 
did not create a Jiduciary responsibility in any party, the United 
States, the Territory of Hawaii, or the State of Hawaii.'' Although the 
Supreme Court's majority opinion in Rice v. Cavetano did not reach that 
issue, Justice Breyer's concurrence did and it reached the same 
conclusion. See Rice v. Cavetano, 528 U.S. 495, 524 (2000). 
Accordingly, I stand by my Opinion. Moreover, if I am confirmed as 
Assistant Attorney General, I will continue to respect and enforce all 
obligations and responsibilities owed to Native Hawaiians under federal 
law.

    Question b): In view of this history, what assurances can you 
provide that you will be committed to carrying out the federal 
government's trust relationship and protecting tribal rights even where 
they are adverse to other government entities?
    Answer: When I was Solicitor at DOI, I took numerous actions to 
ensure that the federal government fulfilled its trust responsibilities 
to Native American Tribes. A few examples include: adopting procedures 
that required all the attorneys within the Solicitor's office to 
examine matters before them for Indian trust Implications and consult 
with the tribal or individual interests concerned; establishing a new 
field office in Palm Springs, California, to provide on-scene legal 
assistance for the bureau of Indian Affairs and its extensive real 
estate program in the Coachella Valley; assisting the Office of Self-
Governance with the preparation of a model compact agreement which was 
used in negotiations between Indian tribes and the Department of the 
Interior and led to the adoption of seventeen tribal self-governance 
compacts; assigning a full-time attorney from the Solicitor's office to 
work with the BIA in the area of child protection; and urging the 
Department of Justice to support Indian hunting and fishing rights, 
especially in the Pacific Northwest I can assure you that my commitment 
to these issues has not wavered.

    Question 35: The question of the proper location of the eastern 
boundary of the 1748 Spanish land grant to the Pueblo of Sandia 
(adjacent to Albuquerque) in central New Mexico has been a matter of 
public controversy for many years. The Pueblo Indians first approached 
the Department of the Interior seeking a boundary correction in 1983. 
On April 4, 2000, after significant litigation and mediation, a 
settlement agreement was reached that remains in effect until November 
15, 2002 if not ratified by. In January, 2001, the Interior Solicitor 
John Leashy issued an opinion, concurred in by Secretary Babbitt, that 
concluded that the Pueblo's eastern boundary extends to the crest of 
Sandia Mountain. Do you agree with the Solicitor's action regarding 
this matter and what action do you believe should be taken after 
November 15, 2002?
    Answer: I recognize that this is an important and sensitive issue. 
For that reason and because this appears to be the subject of an 
ongoing matter being handled by the Division and the Departments of the 
Interior and Agriculture, and because I am not familiar with the facts 
concerning the medication, administrative decision, and settlement 
agreement that are referred to in this question, I do not believe it is 
appropriate to comment on this matter at this time, except to note that 
the extent to which action will be required after November 15, 2002, 
will depend at least in part on whether Congress acts on this matter 
between now and then. If I am confirmed, I look forward to working with 
congress on it.

    Question 36: At your confirmation hearing, you mentioned that in 
order to better prepare for possible nomination to the Assistant 
Attorney General (AAG) for Environment and Natural resources (ENR) you 
met with every former AAG since the Ford Administration. After 
receiving the benefit of their combined wisdom, what do you see as the 
most significant challenges facing the Division over the next four 
years?
    Answer: I appreciated very much the opportunity to meet with the 
many former AAGs for the Division and found them to be a valuable 
source of insight on the opportunities and the challenges facing the 
Division. What was particularly remarkable to me was a common theme 
that ran through my discussions with the more recent AAGs, which is the 
lack of resources with which the Division has been supplied to do its 
important work. They impressed upon me the need to undertake an 
inventory of where the Division's workload is and the importance of 
matching the resources that the Division does have with the needs that 
it must address ever day. They also emphasized the need to bring the 
technology available to the Division's litigators and staff up to 
workable standards that they can more effectively carry out their work 
on behalf of the American public. A vital part of this effort is 
reviewing the activities of the Division's field offices to make sure 
that their needs are met in terms of resources and personnel and to 
ensure that they are serving the Division well. Also, I believe that 
the Division should continue to develop close working relationships 
with the many United States Attorneys Offices and State Attorneys 
General--they can serve as major force multipliers for our work in 
enforcing and defending the environmental and natural resource laws.

    Question 37: One of the successes of environmental years has been 
the partnering of government and private industry in creative 
solutions. How do you think that government and private entities can do 
a better job of creating partnerships that preserve and protect 
endangered and threatened species, preserve wetlands, lead to better 
and economically efficient compliance with Clean Air and Water laws and 
lead to natural resource policies that will protect resources for 
future generations?
    Answer: I agree with Christine Todd Whitman, Administrator of the 
Environmental Protection Agency, who has said that the path to 
continued environmental improvements will require a new emphasis on 
partnerships. I firmly believe that some of the must creative solutions 
to our problems are generated at the local level by citizens, 
businesses, state and local governments, and other interested 
organizations, because I have experienced this in my own practice and 
life. One such example is the work that I did while Solicitor at DOI on 
the Exxon Valdez matter. The various federal entities involved in that 
matter (including DOI, DOJ, USDA, DOT, the Department of Cummerce and 
,EPA) worked with the State of Alaska, local Chambers of Commerce, 
representatives of the fishing and logging industry and environmental 
groups to develop economic measurements of the damages to the natural 
resources in the area Thanks to the information we developed through 
this partnership, we were able to assist those who were engaged in 
negotiations and who ultimately helped determine the fine that was 
paid.
    Although much of the work in forging these partnerships is being 
done by agencies such as the EPA and the Department of the Interior, 
the Department of Justice can play a role here as well by being open to 
creative settlements that improve environmental protections and protect 
resources in cost-efficient ways. Working together, we can achieve the 
next generation of environmental progress which will protect our 
resources and the special blessing that we as Americans have been given 
and that we have an obligation to pass down to our descendants.

                                

 Responses of the Nominee to additional questions submitted by Senator 
                                Cantwell

    Thank you for providing two documents you generated as Solicitor of 
the Interior that established procedures for the handling of Endangered 
Species cases and the Endangered Species Committee (ESC) during your 
tenure.
    The first directive supplied to the Committee establishes a set of 
guidelines for handling Endangered Species cases within the Solicitor's 
office and makes clear that any Associate Solicitor or staff involved 
in consultation on an endangered species case will be prohibited from 
providing legal advice to the Secretary during an ESC proceeding. It 
further prohibits the Associate Solicitor for General Law and his staff 
from participating in any substantive endangered species case 
consultation in order to ensure that they will remain available to 
provide guidance to the Secretary and the Administrative Law Judge in 
an ESC proceeding.

    Question 1: With regard to your own role in the process, did you 
view yourself as exempted from the ban on advising the Secretary on ESC 
issues, even though you had previously advised him on consultation, 
under the ``agency head exception'' outlined in the document? If so, 
what was the basis for this determination and was a similar practice 
followed in previous ESC cases?
    Answer: I do not have present recollection of the precise legal 
analysis I employed ten years ago in determining that I was not 
precluded from acting as a legal advisor to Secretary Lujan and the 
ESC. However, after reviewing the memoranda I provided to the Judiciary 
Committee in which I applied the APA's separation of functions 
provisions to various positions within the Department of Interior 
generally and the Solicitor's office specifically, I believe it is 
likely that I concluded that the Solicitor, as chief legal officer to 
the Secretary, was covered by the ``agency heads exception.'' 
Similarly, I do not remember what weight may have been given to any 
previous separation of functions arrangements that may have been 
established within DOI under prior Endangered Species Committees. I 
believe, however, that the directives I issued in 1991 outlining the 
appropriate separation of functions within DOI represented my best 
interpretation of the applicable statutes, regulations, and case law as 
they existed at that time and as applied to the specific facts in the 
case under consideration.

    Question 2: Upon the filing of the petition for exemption, you 
issued additional guidance that made clear a ``Chinese wall'' was to be 
erected, and that attorneys representing the Fish and Wildlife Service 
and the Bureau of Land Management were not to have substantive 
communications with you, the Deputy Solicitor, or staff of the Division 
of General Law. Were those separations adhered to?
    Answer: To the best of my knowledge and recollection, those 
separations were adhered to.

    Question 3: Did you contemplate the creation of additional 
separations between staff designated to provide guidance to the 
Administrative Law Judge, and staff designated to provide counsel to 
the Secretary? Why or why not?
    Answer: No, since the hearing officer was appointed by the 
Secretary to receive the testimony that would result in a report to be 
given to the Secretary, the staff designated to provide guidance was 
working similarly for the benefit of the Secretary and the ESC. It is 
also important to remember that although Judge Schweitzer, who happened 
to be an ALJ, presided over the hearings and the ESC process, he did 
not act as the interim or ultimate decision-maker.

                                

   Responses of the Nominee to questions submitted by Senator Durbin

    Question 1: What is your position on the Endangered Species Act? 
Please explain.
    Answer: The Endangered Species Act has as its general purposes the 
conservation of endangered and threatened species, many of which have 
great aesthetic, ecological, educational, historical, recreational and 
scientific value, and the ecosystems upon which they depend. I support 
these purposes, and, if I am confirmed as Assistant Attorney General, I 
will both enforce and defend the provisions of the Endangered Species 
Act as the law of the land.

    Question 2: In praising Gale Norton, the Secretary of the Interior, 
you reportedly made the following statement: ``She understands the 
system. She is very good on national park issues and on Endangered 
Species Act law. There won't be any biologists or botanists able to 
come in and pull the wool over her eyes.'' Can you explain that 
statement for the Committee?
    Answer: My tenure as Interior Associate Solicitor for Energy and 
Resources overlapped with Gale Norton's tenure as Associate Solicitor 
for Conservation & Wildlife. In that role, Ms. Norton was the chief 
attorney for the National Park Service and the Fish & Wildlife Service. 
I had the opportunity to observe her interaction with biologists and 
botanists on a variety of ESA listing, delisting and critical habitat 
delineation issues. My comment was intended to emphasize that her 
previous experience with ESA issues, which sometimes involve 
conflicting opinions being offered by biologists and botanists from the 
government and private sectors, would serve her well as Secretary of 
the Interior when she again-would be dealing with these types of 
complex issues.

    Question 3: As Solicitor at the Department of the Interior during 
the first Bush Administration, you were involved with the Endangered 
Species Committee's proceeding regarding timber sales in the Pacific 
Northwest that threatened the habitat of the Northern Spotted Owl. Why 
were the Endangered Species Committee's proceedings treated as a formal 
rulemaking rather than an adjudication?
    Answer: With no guidance being supplied in the statute or the 
regulations, the issues of a rulemaking versus an adjudication had to 
be handled as a matter of first impression. Under administrative law, 
if Congress does not specify by statute the appropriate procedural 
mode, an agency must make the decision. It was decided since the 
Endangered Species Committee members were not judges or lawyers, that 
it would be best to make the Committee's decision-making process less 
formal, thereby allowing the record to include more information rather 
than less. Thus, the Committee had an ample supply of information and 
further opportunity to solicit comments on that information, including 
unsworn reports and economic analyses not subject to cross examination, 
as would be found in a rulemaking. (An adjudicatory process, on the 
other hand, by its nature would have been more highly structured and 
exclusionary.)

    Question 4: Mr. Sansonetti, during the proceedings on the Northern 
Spotted Owl overseen by the Endangered Species Committee, you had many 
potentially conflicting roles. You served as Interior Secretary Lujan's 
official representative to the Endangered Species Committee, Legal 
Counsel to the Endangered Species Committee, chief legal advisor to 
administrative law judge Harvey Sweitzer and Interior Solicitor. Were 
you concerned that serving in these capacities might require you to 
commingle decisional and investigative-prosecutorial functions? Do you 
believe your roles in thus case raised legitimate concerns about the 
fairness of the hearings conducted by the Endangered Species Committee?
    Answer: Yes, I was concerned that, without an effective process in 
place, that carrying out my statutory duties might otherwise require me 
to commingle decisional and investigative prosecutorial functions. 
Consequently, I established a structure that allowed for both the Fish 
& Wildlife Service and the Bureau of Land Management to have their own 
counsel without interference from my immediate staff or me. This 
structure allowed me to concentrate on advising the Secretary and the 
members of the Endangered Species Committee without having to function 
in an investigative- prosecutorial role. As a consequence of taking 
these steps, I do not believe legitimate concerns could be raised about 
the fairness of the Endangered Species Committee hearings. The process 
established was a reasonable interpretation of the statute and 
accompanying regulations, as they existed in 1991.

    Question 5: Environmental justice addresses concerns that 
minorities and low-income people tend to suffer disproportionately 
higher exposure to Environmental harm than the rest of us. In 1994, 
President Clinton issued Executive Order 12898, ``Federal Actions to 
Address Environmental Justice in Minority Populations and Low-Income 
Populations,'' which requires each agency to make environmental justice 
a part of its mission. The Order directs agencies to ensure that 
federal programs affecting human health or the environment do not 
subject individuals to discrimination based on race, color or national 
origin. I'd like to ask you about environmental justice generally and 
thus Executive Order specifically. What is your position on thus issue?
    Answer: I support the fair treatment of people of all races, 
cultures, and incomes with respect to the development, implementation, 
and enforcement of environmental laws and policies, and if confirmed as 
Assistant Attorney General of the Environment and Natural Resources 
Division, I would work to ensure that the Division's activities did not 
subject individuals to discrimination based on race, color or national 
origin.

    Question 6: There is a close connection between environmental 
justice litigation and Title VI of the Civil Rights Act of 1964, which 
prohibits discrimination based on race, color, or national origin in 
programs and activities that receive federal financial assistance. 
Pursuant to Title VI, most federal agencies have adopted implementing 
regulations that prohibit not only intentional discrimination by the 
agencies, but also agency policies and practices that could have a 
discriminatory effect. Environmental justice litigants have routinely 
relied on Title VI in bringing judicial or administrative complaints 
against government agencies whose programs result in adverse 
discriminatory impacts. Last year, however, the United States Supreme 
Court in Alexander v. Sandoval ruled that there is no private right of 
action to enforce disparate impact regulations promulgated under Title 
VI. This case effectively shields state agencies that receive federal 
funding from private civil rights lawsuits over policies that have a 
discriminatory effect on minorities. While the Sandoval case dealt with 
an English-only law, environmental justice advocates are concerned that 
the ruling of this case effectively precludes the filing of future 
environmental justice lawsuits that rely on Title VI. This will have a 
detrimental effect on the ability of the public to hold government 
agencies accountable for continuing to implement the goals of 
environmental justice and other environmental statutes as, there are no 
other practical legal remedies available to the affected members of 
minority and low-income communities. Should you be confirmed, what 
assurances can you give that environmental justice litigants will 
continue to have their day ill court?
    Answer: Although I am not familiar with whether Congress is taking 
any action in response to the ruling in Alexander v. Sandoval or 
whether the lower courts have relied on that ruling in the context of 
environmental justice lawsuits, I support the goal of Title VI of the 
Civil Rights Act of 1964, and if I am confirmed, I pledge to work with 
my counterparts in the Civil Rights Division and the Environmental 
Protection Agency on this important issue.

                                

   Responses of the Nominee to questions submitted by Senator Kennedy

    Question 1: In Solid Waste Agency v. United States Army Corp of 
Engineers (U.S. 2001) the Supreme Court ruled that a federal regulation 
defining ``navigable waters'' under the Clean Water Act to include 
intrastate waters that provide habitat for migratory birds exceeded the 
agency's statutory authority. The Court declined to defter to the 
agency's interpretation of the statute under Chevron, U.S.A. v. 
National Resources Defense Council (U.S. 1984), holding that the 
statute, if so interpreted, would rare significant constitutional 
questions as to whether the statute exceeded Congress's authority under 
the Commerce Clause. Thus, the Court ruled, deference to the agency was 
unwarranted.
    Question a: Do you believe that the interpretation of the statute 
urged by the agency--which would allow regulation of intrastate waters 
that provide habitat for migratory birds--would violate the Commerce 
Clause? Why or why not?
    Answer: The question of the constitutionality of the ``migratory 
bird rule'' under the Commerce Clause was not squarely presented in 
Solid Waste Agency v. United States Army Corps of Engineers (SWANCC) 
because the Supreme Court invoked the principle of constitutional 
avoidance, designed to promote judicial restraint and thereby protect 
the prerogatives of the Legislative and Executive branches, by 
preventing courts from unnecessarily rendering decisions about 
constitutional questions. Given that the Court avoided the issue and 
that my knowledge of it is derived solely from a review of the SWANCC 
opinion, I presently lack sufficient information to form a belief 
regarding whether the interpretation of the statute advanced by the 
agency would violate the Commerce Clause. If confirmed as AAG, I would 
familiarize myself with the agency's arguments by reviewing the briefs 
filed in the case and consulting with those in the Department who 
oversaw the case.

    Question b: Do you plan to take the position that any other federal 
environmental statutes--or agency interpretations of environmental 
statutes--exceed Congress's power under the Commerce Clause?
    Answer: In general, it is the role of tile Department of Justice, 
as guided by tile Solicitor General's Office, to defend the 
constitutionality of the enactments of Congress and the regulations of 
the Executive branch issued pursuant to delegations of authority by 
Congress. I will work to act in and fulfill this role. It is my 
understanding that only in rare, and extremely clear, cases has the 
Department or Justice refused to defend the constitutionality of 
Congressional statutes.

    Question 2: In recent years, federal courts leave entertained 
claims by developers and landowners that the application of certain 
environmental regulations violate the Constitution's Takings Clause. 
For instance, in Florida Rock Indus., Inc. v. United States, 18 F.3d. 
1560 (Fed. Cir. 1994), the Federal Circuit held that the government may 
have to pay compensation for a partial regulatory taking or a reduction 
in property value caused by wetland regulations (on remand the trial 
court then found that a partial taking had occurred). In Tulare Lake 
Basin Water Storage District v. United States, 49 Fed. Cl. 313 (2001), 
the Court of Federal Claims found a taking where federal protections 
for endangered salmon and delta smelt resulted in reduction of water 
available to claimants under their contracts with the state of 
California.
    The Assistant Attorney General for the Enviromnent and Natural 
Resources Division is responsible for defending legal challenges 
brought by parties seeking such compensation (see, e.g., Flordia Rock) 
and also, when appropriate, for amicus briefs when questions of takings 
arise before the federal courts (see, e.g., Nollan v. California 
Coastal Commission (U.S. 1986) (Brief for the United States supporting, 
reversal)).
    Question a: Under what circumstances do you believe that the 
Takings Clause should apply to situations that do not involve physical 
expropriation or invasion of property by the government?
    Answer: The Supreme Court has held that some non-physical. 
regulatory actions may constitute takings. See Pennsylvania Coal Co. v. 
Mahon, 260 U.S. 393 (1922). The Court has also articulated a test for 
assessing when such regulatory takings have occurred. See Penn Central 
Transportation Co. v. City of New York, 438 U.S. 104 (1978); Palazzolo 
v. Rhode Island, 121 S. Ct. 2448 (2001). The Supreme Court and the 
lower courts interpreting the Court's precedent have made clear that 
the test as to whether a taking has occurred is highly fact-specific 
and must be evaluated on a case-by-case basis. Thus, to determine 
whether a particular regulatory action constitutes a taking would 
require careful examination of the specific facts. In most instances, I 
would apply the Penn Central test, which is applicable to the majority 
of regulatory takings suits.

    Question b: When, in your view, is an environmental regulation 
sufficiently burdensome as to constitute a taking requiring 
compensation by the government?
    Answer: In Mahon, the Supreme Court held that regulatory actions 
become takings when they go ``too far.'' 260 U.S. at 415. Under the 
Penn Central test designed to flesh out when a regulation has gone 
``too far,'' burdensomeness (more commonly termed the economic impact) 
on regulated parties is only one part of the analysis of whether a 
regulatory taking has occurred. See Penn Central, 438 U.S. at 124. The 
other factors to be considered are the character of the governmental 
action and the claimant's distinct investmentbacked expectations. Id. 
Again, as Assistant Attorney General, I would apply Penn Central to 
answer this question. given the case's particular factual setting. 
Subsequent Supreme Court takings decisions such as Lucas v. South 
Carolina Coastal Council, 505 U.S. 1003 (1992), address the unusual 
circumstance in which a regulatory action renders a particular parcel 
of property valueless and denies the owner of all economically viable 
use.

    Question c: If confirmed as Assistant Attorney General how will you 
approach takings claims brought against federal agencies that seek to 
enforce environmental law such as those protecting endangered species 
and wetlands?
    Answer: The facts of endangered species and wetlands cases are 
often complex, as is the statutory and regulatory law in these areas. 
The precise manner in which I would approach takings questions in these 
areas will depend upon the specific legal and factual context of a 
case. I will, of course, follow the applicable Supreme Court case law 
in determining my approach if confirmed as Assistant Attorney General.

                                

    Responses of the Nominee to questions submitted by Senator Leahy

    Question 1: The Department of Justice best fulfills its law 
enforcement responsibilities when it presents the appearance, as well 
as the fact, of unbiased and impartlal exercise of prosecutorial 
judgement. Any suggestion, let alone the actuality, of political, 
interference with those important decisions would undermine the 
credibility and effectiveness of the critically important law 
enforcement efforts of the Justice Department. What approaches will you 
take to ensure that the Hill and the White House do not exert--and are 
not perceived to be exerting--political pressures on you and your 
division?
    Answer: While I believe that it is desirable to have open lines of 
communication between the Justice Department, Congress, the White 
House, and the various federal agencies on issues of mutual interest 
and concern, I also believe it is important for those in the Department 
of Justice to maintain a proper institutional independence in their 
decision-making. Accordingly, if confirmed as Assistant Attorney 
General, I would ensure that my decisions and recommendations in the 
Environment and Natural Resources Division were based on my best 
judgement as informed by existing statutes, regulations, and 
controlling case law. I would abide by the Department's ``pending 
matters policy'', which addresses congressional involvement in pending 
litigation, as well as any other policies designed to avoid the 
appearance or reality of political interference.

    Question 2: Following up on the discussion of the Clean Air Act New 
Source Review (NCR) enforcement eases against coal-fired power plants 
and refineries that we began at your hearing:
    Question a: Do you have any opinion about the merits of these 
cases, and if so, what is the basis of your information?
    Answer: The information I have on these cases comes from press 
accounts and a meeting I attended at which representatives of the 
Attorney General Offices of the States of Massachusetts, Pennsylvania, 
New York, Vermont and New Jersey mentioned these cases. Accordingly, my 
current familiarity with the litigation is insufficient to allow an 
opinion as to their merits.

    Question b: Have you met with any representatives of industry about 
these cases, and have you been briefed about these cases by any parties 
and, if so, by whom?
    Answer: I have not met with industry representatives about these 
cases. Representatives of the Attorney General Offices of the States of 
Massachusetts, Pennsylvania, New York, Vernmont, and New Jersey 
mentioned these cases to me at a meeting this past summer.

    Question c:  Do you plan to make any changes in the prosecution of 
these cases, and if you leave not yet decided that, how do you plan to 
go about making that decision?
    Answer: If I am confirmed, I will ensure that these cases proceed 
consistent with the conclusions of the Presidentially-mandated DOJ 
review of the NSR cases.

    Question d: Have you been briefed on DOJ's ongoing review of the 
NSR enforcement cases, called for by the Administration's national 
energy policy?
    Answer: No.

    Question e: Will you abide by whatever recommendation has been made 
or will you reevaluate the issue when you start?
    Answer: If I am confirmed, I will ensure that these cases proceed 
in a manner consistent with the conclusions reached by the 
Presidentially-mandated review process.

    Question f: What do you believe a business should do when faced 
with a regulation that may be capable of more than one reading?
    Answer: The business should consult with its legal counsel. It may 
also want to consider relevant case law, agency guidance, and the 
rulemaking record. If appropriate, the business could contact the 
regulating agency for further guidance.

    Question g: What do you understand about the defendants' fair 
notice defenses in the power plant cases?
    Answer: I have not read the briefs in these cases and am unfamiliar 
with defendants' fair notice defenses. If confirmed, I will 
familiarize. myself with those briefs.

    Question h: What do you understand about the defendants' ``industry 
practice'' arguments, in which defendants argue that anything done 
within the industry, no matter how infrequently, is ``routine'' for 
purposes of the NSR routine maintenance exemption?
    Answer: I have not read the briefs in these cases and am unfamiliar 
with defendants' ``industry practice'' arguments. If confirmed, I will 
familiarize myself with those briefs.

    Question i: What is your understanding of the environmental and 
public health impacts of the violations at issue in these cases?
    Answer: Other than generalized descriptions in press accounts, I am 
unfamiliar with the impacts of the violations at issue. If confirmed, I 
would familiarize myself with the NSR cases, including the 
environmental impacts and public health issues raised by the alleged 
violations.

    Question j: How should environmental impacts and public health 
issues be considered iin setting priorities?
    Answer: Priorities regarding environmental impacts and public 
health issues are made in the first instance by the program agencies, 
rather than by the Department of Justice. However, I believe that these 
issues are an important factor in setting priorities.

    Question k: Will you continue to devote extensive resources to 
these cases?
    Answer: I am not familiar with the extent of the resources devoted 
to these cases. If firmed, I will review these cases in light of the 
Division's workload and budget to determine whether appropriate 
resources are devoted to them.

    Question l: What is your view of the relationship hotween EPA and 
DOJ on the decisionmaking regarding these cases?
    Answer: I any not familiar with the relationship of the two 
agencies on the decisioninaking regarding these cases.

    Question m: If EPA recommends changes to the NSR rules, would that 
impact your view of the cases that concern past violations?
    Answer: I am not familiar with the substance of the rules or the 
nature of any of EPA's potential recommendations and I do not have a 
view of the cases. If I am confirmed as Assistant Attorney General, I 
will familiarize myself with the litigation and any EPA recommendations 
to change the NSR rules.

    Question n: What is your view of the role of states inenvironmental 
enforcement?
    Answer: With respect to the work of the Division, I believe that 
the states should be viewed as partners in the Department's effort to 
enforce the environmental laws in a fair and firm manner, and that we 
should develop cooperative working relationships to resolve any 
concerns or issues that may arise in the arena of environmental and 
resources law.

    Question o: What is your view of tile role of citizens in 
environmental enforcement?
    Answer: A number of enviromnental statutes provide for citizen suit 
enforcement. I support the Congressionally-mandated role of citizens in 
errvironrnental 1enforcement. Also, several of these statutes require 
that the Department of Justice review proposed consent decrees in 
citizen suit actions for consistency with the underlying statute. This 
is an important obligation that the Division will continue to 
discharge.

    Question p: Do you have any views oil working with citizen and 
state plaintiffs in enforcement cases?
    Answer: I believe the Department can benefit from developing 
cooperative working relationships with citizen and state plaintiffs to 
enforce tile environmental laws in a fair and firm manner. Such 
relationships can help to resolve any concerns or issues that may arise 
in the arena of enviromnental and resources law. In particular, I would 
strive for greater cooperation and in sharing information to support 
mutual efforts in matters of both regional and national significance in 
the civil and criminal context.

    Question 3: From your experience, what would you say that EPA and 
DOJ done wrong in the arena of envirownental enforcement, defense, and 
policy development? Do you have any plans for changing the emphasis of 
the agencies in these areas?
    Answer: When I was Solicitor of the Department of the Interior, I 
learned the importance of constructive working relationships with the 
Department of Justice, and with other federal agencies, including EPA. 
If continued, I would look forward to ensuring that constructive 
relationships and open communication exists with EPA and agencies oil 
matters related to the Division's representation. It is the 
responsibility of the client agency to determine its priorities.

    Question 4: In a few cases, the EPA is changing certain reulatory 
requirements prospectively: what effect should that have on existing 
enforcement cases brought under the regulations that are being changed?
    Answer: The effect of a changed regulation on existing enforcement 
cases is highly dependent on the particarlar facts of the regulation 
and cases at issue, so it is difficult to make a general statement 
about how such cases would he handled. Aniong the factors to be 
considered would be: whether the regulatory change was substantive or 
procedural; the purpose of the regulatory change; the procedural status 
of the case at tile time the regulation is changed; and the nature of 
the relief sought.

    Question 5: What is your impression of the quality of DOJ staff 
attorneys? Do you have any plans for changing the management of the 
litigating sections? Do you have any particular concers about 
particular sections? Do you have any plans for reallocating resources? 
Have you considered whether changes are merited for the Environment and 
Natural Resources Division budget?
    Answer: In the last few months, I have met with the many former 
Assistant Attorney Generals (AAGs) for the Division and found them to 
be a valuable source of insight on the opportunities and the challenges 
facing the Division, and its extremely capable attorney staff. This 
latter observation is consistent with any experience as Solicitor of 
the Department of the Interior where I found the staff attorneys in the 
Division to be very professional, qualified, and dedicated. 
Particularly remarkable to me was a common theme that ran through my 
discussions with the more recent AAGs, that the Division suffers front 
a lack of resources necessary to accomplish its important work. The 
former AAGs impressed upon nee the need to bring available technology 
to the Division's litigators so that the attorneys can more effectively 
litigate on behalf of the American public. A vital part of this effort 
is ensuring that the needs of the Division's field offices are met. 
Also, I believe that the Division should continue to develop close 
working relationships with United States Attorneys Offices and State 
Attorneys General--these entities can provide invaluable resources in 
the Division's work in enforcing and defending the environmental and 
natural resource laws.

                                

                       SUBMISSION FOR THE RECORD

                              Congress of the United States
                                   House of Representatives
                                                   November 6, 2001

Senator Patrick Leahy
Chairman
Committee on the Judiciary
224 Dirksen Building
Washington, DC 20510

    Dear Senator Leahy:

    I am writing to voice my strong support for Thomas L. Sansonetti as 
President George W. Bush's nominee to be Assistant Attorney General for 
the Environment and Natural Resources Division.
    I have a great respect for Tom and complete confidence in his 
abilities. His illustrious career speaks volumes as does his strong 
desire to serve our country in the capacity of a public official.
    His extensive background and experience in environmental and 
natural resources policy will surely benefit every American. Knowing 
Tom in both a personal and professional capacity, I am very familiar 
with his sound analysis and his fairminded judgment on these important 
public policy matters.
    Mr. Chairman, I give my full support for his confirmation as 
Assistant Attorney General. Thank you for your timely consideration of 
his confirmation.
            Sincerely,
                                              Barbara Cubin
                                                 Member of Congress

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